The Importance of an Advance Directive for Health Care in Tennessee

December 17, 2023

What is an Advance Directive and Why is it Valuable?

On May 9th, 2017, the State of Tennessee implemented an updated Advance Directive for Health Care form, which combines the information typically included in a living will and a health care power of attorney and eliminates the need for these separate documents. This new form simplifies the process of outlining your desired care if you become incapacitated and can no longer make treatment decisions on your own. If you have previously drafted a living will and a health care power of attorney, your wishes from these documents should still be legally valid. However, we highly recommend revisiting and updating your plan periodically with an experienced estate planning attorney to ensure it meets your needs and the state’s legal requirements.

What is Included in an Advanced Directive?

A completed Tennessee advance directive form can address the following issues:

• Naming an agent who can make health care decisions on your behalf: The person you designate will have the same rights as you to make choices regarding your health care treatment. You can decide when these rights are effective. You can also appoint an alternate individual for this role if your original agent is unable or unwilling to make decisions.
• Specifying your wishes for the treatments you do and do not wish to receive: The form outlines several situations where your quality of life may be compromised, and you can state whether or not you would be willing to live in this condition with adequate comfort care. You may then describe which types of palliative care, resuscitation efforts, and other treatment modalities you wish to undergo if your condition becomes unacceptable and the situation is irreversible.

You have the option to name an agent without specifying your treatment wishes and vice versa. However, completing both sections of the advance directive will give you the most comprehensive control of your care plan should you become incapacitated.

When Does Your Advance Directive Go Into Effect?

An advance directive must be filled out while you still have the mental capacity to understand, complete, and sign a legal document. However, it does not necessarily become effective immediately. The two sections of your advance directive may have different timelines for when they will apply.

When Can Your Health Care Agent Make Decisions?

You may specify in the form that your agent does not have your permission to make healthcare choices until you are legally incapacitated. This option may seem the most logical because it limits the agent’s power to when it will be needed. However, you should discuss your decision with your legal advisor to ensure you understand the pros and cons. If you feel your agent cannot be trusted to have this power while you are still mentally capable, they may not be the best choice for your needs.

You also have the option to give your designated agent(s) the power to make healthcare decisions for you at any time, regardless of your capacity. This designation could be useful if you are beginning to face mental challenges, such as temporary confusion or forgetfulness, and wish to let a trusted person like your spouse or child help you with your treatment choices. It can also make for an easier transition for your agent because they do not need to have you declared incapacitated before they can start directing your care. Determining incapacitation can sometimes be challenging and time-consuming because it requires a doctor’s opinion, and your mental condition may not be immediately evident.

When Will Your Treatment Decisions Be Effective?

Because the second half of the advance directive form only applies to treatments used during end-of-life care, your wishes will only be followed in those situations. It can feel uncomfortable and even unnecessary to think about circumstances where your quality of life would become unacceptable, particularly if you are currently young and healthy. However, clearly stating your preferences now can be a thoughtful gift to your loved ones if the unimaginable ever occurs and you become unable to guide your own care. An advance directive can save your family from unnecessary stress, disagreements, or feelings of guilt over treatment decisions because they will know how you want them to proceed.

How Do You Make Your Advance Directive Legally Binding?

You are not required to consult a lawyer when creating your advance directive. However, it can be helpful to speak to a lawyer to ensure your wishes for care are being properly expressed in your document in a legally enforceable manner. Seeking legal guidance is recommended if you have very detailed requirements due to personal or religious beliefs or have concerns that your family may disagree with your choices. It is crucial to appoint an agent you trust who is familiar with your wishes and values to make healthcare decisions on your behalf.

Once you have completed the form to your satisfaction, you must have your signature witnessed by a notary public or two competent adults. Neither adult witness can be named as your agent, and at least one must be someone unrelated to you who does not benefit from your estate upon your passing. Once the directive is completed, you should take the following actions:

• Give a printed copy to your doctor(s)
• Provide a copy to your healthcare agent(s)
• Place a copy in your personal records
• Discuss the contents of your directive with loved ones and your healthcare providers so everyone is on the same page.
• Review your advance directive often to ensure it meets your needs and update as necessary.

How Can Our Law Firm Assist You?

Much like a will, an advance directive is a vital part of any estate plan. It protects your interests while you are still alive by giving you input on your care and treatment preferences, even if you have lost the ability to voice your wishes personally. An advance directive prevents heartbreaking situations where families are split on how to provide the best and most humane care for their ailing loved one. By addressing these issues now, you can give yourself and your family peace of mind for the future. To learn more about Tennessee’s Advance Directive for Healthcare form, contact Brighter Day Law at 615-437-8808 to schedule a no-obligation case evaluation.