Who Decides If You Can't? The Tennessee Advance Directive for Health Care

Quick answer: In Tennessee, the document that says who decides your medical care if you can’t is the Advance Directive for Health Care. Since May 9, 2017, one model form has combined the living will and the medical power of attorney. You can name an agent and a successor agent, state your treatment wishes, and have it witnessed or notarized. You do not need a lawyer to create one. A living trust won’t do this job, so a Nashville family with a trust still needs this form.

What does an Advance Directive for Health Care do?

It tells your doctor how you want to be treated if you are terminally ill or permanently unconscious. You can use it to avoid life-prolonging interventions such as CPR, kidney dialysis or breathing machines, or to say you just want to be pain free and comfortable at the end of life. You can add special instructions or limitations.

It also lets you name an agent or alternate agent to make health care decisions for you if and when you can’t make them yourself.

Who needs one?

The state’s answer is all adults, including mature minors and emancipated minors. The Health Facilities Commission makes the point plainly: a medical crisis can come at any age, and “we never know when an accident or serious illness will leave us incapable of making our own health care decisions.”

The form only takes effect when you are incapable of clearly expressing your own wishes. Until then, you keep deciding for yourself.

Do you need a lawyer?

No, and you should know that going in. The state says the form can be created without the assistance of a lawyer. The form is available from the state’s site or a local health care facility.

Where a lawyer can help is in making sure it fits the rest of your plan, such as your will and any living trust, and that the people you named in each document make sense together.

How do the old and new documents compare?

Document	What it covers	Status in Tennessee
Living Will or Advance Care Plan	Your treatment wishes	Old forms are still honored
Medical Power of Attorney or Appointment of Health Care Agent	Who decides for you	Old forms are still honored; the agent can now be named in the combined form
Advance Directive for Health Care	Both, in one model form since May 9, 2017	The current form
Living trust	Assets you put in the trust, not medical care	A separate document

If you have an older form, the state says it will be honored, but the newer form has more detailed instructions and may better express your wishes.

How should you choose your agent?

Choose someone who knows your values and wishes and whom you trust. Do the same for a successor agent, and ask both to be sure they understand and agree.

The state adds a few specifics:

• You may, but do not have to, choose a family member.
• Name only one person each as agent and successor agent.
• Do not choose your doctor, or anyone likely to be your future health care provider.
• Pick someone who will be available if needed and will decide the way you would.

It also helps to give direction on life-prolonging intervention, particularly tube feedings, CPR, breathing machines and organ and tissue donation. Many people write their agents a letter about their personal values and attach a copy to the form.

Who can witness your signature?

Your witnesses must be competent adults who are not your agent, and at least one must not be related to you by blood, marriage or adoption. The state also says to choose people who will not inherit any of your property. The form can be witnessed and/or notarized, and banks, insurance agents, government offices, hospitals and doctors’ offices can have or point you to a notary.

What should you do with it after signing?

Give a copy each to your agent, your successor agent, your doctor and your local hospital. Keep the original in a safe place where it can be easily found. The state warns that a safe deposit box may not be the best place unless someone close to you has access if you become incapacitated. A photocopy is legally valid.

To change it, create a new one. The new directive automatically cancels the old one. Tell everyone who has a copy, then collect and destroy the old copies.

What if your family disagrees?

Talk with your family and doctors now. The state says that if others understand your choices and the reasons for them, they are less likely to challenge them later. It also says the wishes of other family members will not override your own clearly expressed choices, or those made by your agent on your behalf.

How does this fit with a living trust?

They do different jobs. The FDIC describes a living trust as an agreement covering deposits and other assets. Tennessee’s directive covers medical treatment. A complete plan usually thinks about both, along with who would handle a home in the trust and bank deposits. If long-term care is a concern, also read about TennCare estate recovery.

Why talk with Thompson Law in Nashville?

Attorney Christopher “Kim” Thompson has practiced in Middle Tennessee for over 30 years, and you work directly with him. Call (615) 832-2335 for a free consultation, or contact the firm.