Durable Powers of Attorney
A power of attorney (POA) is a document signed that has been signed by a competent adult that gives another person (called an “attorney-in-fact” or “Agent”) the authority to make decisions and sign documents for the benefit of the person executing the POA (the “principal”).
There are two basic types of durable powers of attorney: financial, and health care.
Durable Powers of Attorney for Finances
A financial power of attorney is said to be “durable” when it includes a statement that it remains effective even when the signer is no longer competent to execute financial documents.
A durable power of attorney is generally effective when signed and notarized and remains effective until the person who signed it revokes the POA or dies.
A financial durable power of attorney authorizes the Agent to make business decisions as if the Principal were taking the actions himself. The authority given by the Principal in the POA may be broad or limited, as stated in the provisions of the document. Some general durable POAs incorporate by reference a list of standard general power of attorney powers. (See T.C.A. Section 34-6-109.) A durable power of attorney generally does not give the Agent the authority to make gifts unless the Principal specifically authorizes them in the POA. An Agent under the
POA has a fiduciary duty to act in the best interests of the Principal.
The signature of the Principal should be notarized as evidence that it was signed by the Principal. The notary public confirms that the person named in the document actually signed it and was competent at the time.
Health Care Powers of Attorney and Living Wills (Advance Directives)
Everyone needs to appoint a trusted person to make health care decisions for them when they are no longer able to make or direct their own medical treatment. The person who is appointed is sometimes called the “health care agent.” The document used to appoint a health care agent is usually called a “durable power of attorney for health care.” A “health care” power of attorney does not cover financial decisions. A “durable general power of attorney” is normally just for finances, not health care (though some durable powers of attorney cover both).
Some people think that because they have a “living will” they do not need a document appointing a health care agent, but that is not true. A health care power of attorney gives your agent the authority to give “informed consent” to authorize any medical care you might need (surgery, for instance) when you cannot direct your own health care. A durable power of attorney for health care does not take away your own authority to make decisions for yourself so long as you are able to do so.
“Some people think that because they have a ‘living will’ they do not need a document appointing a health care agent, but that is not true.”
Everyone needs to appoint a health care agent, and Tennessee has authorized a simple one page form that is available for everyone. (You can download a basic blank form from our website.)
A “living will” may also be important to give guidance to your family and physicians about your wishes for your care in the event of a terminal condition. Often durable health care powers of attorney include living will provisions. Even if you do not have a living will, your health care agent has the authority to make decisions based upon your own wishes as expressed to your agent. You should always discuss your wishes in this respect with your whole family, but particularly with your designated health care agent.
updated January 2024