(a) An attorney in fact under a durable power of attorney for health care may not make health care decisions unless all of the following requirements are satisfied:

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Terms Used In Tennessee Code 34-6-203

  • Codicil: An addition, change, or supplement to a will executed with the same formalities required for the will itself.
  • Durable power of attorney for health care: means a durable power of attorney to the extent that it authorizes an attorney in fact to make health care decisions for the principal. See Tennessee Code 34-6-201
  • Health care: means any care, treatment, service or procedure to maintain, diagnose or treat an individual's physical or mental condition, and includes medical care as defined in §. See Tennessee Code 34-6-201
  • Health care institution: means a health care institution as defined in §. See Tennessee Code 34-6-201
  • Health care provider: means a person who is licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care in the ordinary course of business or practice of a profession. See Tennessee Code 34-6-201
  • Person: includes an individual, corporation, partnership, association, the state, a city, county, city and county, or other public entity or governmental subdivision or agency, or any other legal entity. See Tennessee Code 34-6-201
  • Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
  • signed: includes a mark, the name being written near the mark and witnessed, or any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record, regardless of being witnessed. See Tennessee Code 1-3-105
  • State: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
(1) The durable power of attorney for health care specifically authorizes the attorney in the fact to make health care decisions;
(2) The durable power of attorney for health care contains the date of its execution; and
(3) The durable power of attorney for health care must be in writing and signed by the principal. The durable power of attorney for health care is valid if the principal’s signature is either attested by a notary public with no witnesses or witnessed by two (2) witnesses without attestation by a notary public. A witness is a competent adult, who is not the agent, and at least one (1) of whom is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the estate of the principal upon the death of the principal under any will or codicil made by the principal existing at the time of execution of the durable power of attorney for health care or by operation of law then existing. The durable power of attorney for health care shall contain an attestation clause that attests to the witnesses’ compliance with the requirements of this subdivision (a)(3). It is the intent of the general assembly that this subdivision (a)(3) have retroactive application.
(b) Except as provided in subsection (d):

(1) Neither the treating health care provider nor an employee of the treating health care provider, nor an operator of a treating health care institution nor an employee of an operator of a treating health care institution may be designated as the attorney in fact to make health care decisions under a durable power of attorney for health care; and
(2) A health care provider or employee of a health care provider may not act as an attorney in fact to make health care decisions if the health care provider becomes the principal’s treating health care provider.
(c) A conservator may not be designated as the attorney in fact to make health care decisions under a durable power of attorney for health care executed by a person who is a conservatee under the laws of this state where the conservatee has the power to execute legal documents, unless:

(1) The power of attorney is otherwise valid;
(2) The conservatee is represented by legal counsel; and
(3) The attorney representing the conservatee signs a certificate stating in substance:

I am an attorney authorized to practice law in the state where this power of attorney was executed, and the principal was my client at the time this power of attorney was executed. I have advised my client concerning my client’s rights in connection with this power of attorney and the applicable law, and the consequences of signing or not signing this power of attorney, and my client, after being so advised, has executed this durable power of attorney for health care.

(d) An employee of the treating health care provider or an employee of an operator of a treating health care institution may be designated as the attorney in fact to make health care decisions under a durable power of attorney for health care if:

(1) The employee so designated is a relative of the principal by blood, marriage or adoption; and
(2) The other requirements of this part are satisfied.
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