tennessee living wills and powers of attorney
Hint: it's why you need a Living Will and Power of Attorney!
One of the biggest concerns most individuals have is who will make healthcare decisions for us if we’re ever incapacitated or in an emergency. As with most planning, when it comes to incapacity and death, we don’t like to think about it. Unfortunately, by the time the decision would actually impact us, it’s too late.
It’s very important to have both a Living Will and a Power of Attorney in place for emergencies, but before I get to that, let’s review what happens if you’re ever incapacitated.
Without Proper Planning - the Law Chooses
If you ever find yourself in an emergency where you aren’t capable of making decisions for yourself, outside of providing emergency care to stabilize you (or just to keep you alive), your physicians will look for someone to make medical decisions on your behalf.
Almost 20 years ago, in 2004, the Tennessee legislature enacted the Tennessee Health Care Decisions Act, which tried to balance making healthcare decisions more “user friendly,” and reduce liability to providers in situations where patients are incapable of making their own healthcare decisions. This Act is codified at Tenn. Code Ann. § 68-11-1801.
A common question that I get is “what happens when you haven’t appointed an agent or made a living will? Who makes the decisions?” The answer to that question is provided in the THCDA at Tenn. Code Ann. § 68-11-1806. That section provides that:
“In the case of a patient who lacks capacity, has not appointed an agent, has not designated a surrogate, and does not have a guardian, or whose agent, surrogate, or guardian is not reasonably available, the patient’s surrogate shall be identified by the supervising health care provider and documented in the current clinical record of the institution or institutions at which the patient is then receiving health care.”
So, in short, if you haven’t identified anyone to make decisions for you, your doctor will choose someone. There are some requirements, however. First, your surrogate “shall be an adult who has exhibited special care and concern for the patient.” This could be a friend, a family member, or a colleague. Second, the surrogate must be “familiar with the patient’s personal values,” meaning at least some knowledge of what you would want, would think is appropriate, and perhaps even what you would believe is moral. Third, the surrogate must be “reasonably available, and […] and willing to serve.” The physician cannot choose someone who isn’t available or someone who does not want the responsibility.
Further, the THCDA offers some guidance on the preference of surrogates. Here’s the list the legislature has made, in order of preference:
The patient’s spouse, unless legally separated;
The patient’s adult child;
The patient’s parent;
The patient’s adult sibling;
Any other adult relative of the patient; or
Any other adult who satisfies the requirements of subdivision (c)(2).
Therefore, the healthcare provider would typically work their way down this list before selecting someone else. This isn’t the end of the inquiry, however. The statute also provides factors that the physician should consider when making the decision:
Whether the proposed surrogate reasonably appears to be better able to make decisions, either in accordance with the known wishes of the patient, or in accordance with the patient’s best interests;
The proposed surrogate’s regular contact with the patient prior to and during the incapacitating illness;
The proposed surrogate’s demonstrated care and concern;
The proposed surrogate’s availability to visit the patient during the patient’s illness; and
The proposed surrogate’s availability to engage in face-to-face contact with health care providers for the purpose of fully participating in the decision-making process.
As you can see, the statute does its best to guide the selection of a person that the patient themselves would pick if they could.
Finally, if all else fails, and the physician cannot find anyone who is qualified, the physician may make the healthcare decisions (Note that this is a very simplified statement of the process and that when this does happen, there are ethics rules and policies that the healthcare provider must satisfy).
This is a lot of responsibility to place on someone who isn’t expecting it, especially if your incapacity is an emergency, or completely unexpected. That is why it is critical to plan ahead. So, what can you do?
Living Wills and Why They Are Critical
First, everyone should have a living will or an advance directive at a minimum. If you’ve ever had a surgery or medical procedure requiring general anesthesia, chances are the healthcare provider has asked you whether you have a living will or advance directive. If you become medically incapacitated, a living will makes your wishes known to doctors, hospital staff, and even family members. This includes decisions involving life support and resuscitation. Importantly, the person making decisions for you must make those decisions in accordance with your instructions.
So, while it will never truly be “easy” for your agent or surrogate to make these decisions for you, having written instructions from you in advance can make these decisions much less daunting for your loved ones, especially when you discuss your wishes in advance.
Power of Attorney - Different, But Just As Important
While a living will provides your written instructions for medical care, a Power of Attorney is meant to avoid the confusion of finding someone to make decisions for you under the statute. This legal document names a person that you choose as an “in case of emergency” decision-maker for you (known as your “agent” or “attorney-in-fact“), should you be unable to make decisions for yourself. You can also list a backup in case something happens, and your first-named agent is no longer able to perform these duties.
Living Will and Power of Attorney - The Perfect Combo
Ideally, you will have both a power of attorney and a living will in place. That way, if you are incapacitated, your healthcare providers will know who will make decisions for you, and what those decisions should reasonably be. Further, if the healthcare provider cannot locate or get in touch with your agent, they will still know what your wishes are.
Importantly, you can specify when these documents come into play. For instance, you can state that your living will or power of attorney are only to be effective from the moment you are incapacitated and will be ineffective as soon as you are no longer incapacitated.
These documents are a critical part of planning for your family, and every individual should have them. In the end, these documents can save a lot of trouble and heartache for your loved ones if you are incapacitated, and can’t make decisions for yourself.
