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Can an individual execute a "living will" under Tennessee law?

Posted on Apr 26 2013 9:53PM by Attorney, Jason A. Lee

Tennessee law allows the execution of a "living will" according to the "Tennessee Right to Natural Death Act" which was passed in 1985.  The living will allows you to make the decision to not be kept alive by artificial means if you have a terminal condition and there is no expectation of recovery.   T.C.A. § 32-11-102 discusses the legislative intent in allowing living wills under Tennessee law.  This statute provides as follows:

 

(a) The general assembly declares it to be the law of the state of Tennessee that every person has the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person's own medical care, specifically including palliative care and the use of extraordinary procedures and treatment. The general assembly further declares that it is in the public interest to facilitate recovery of organs and/or tissues for transplantation and to provide mechanisms for individuals to express their desire to donate their organs and/or tissues.

(b) The general assembly does further empower the exercise of this right by written declaration, called a “living will,” as provided in this chapter.

 

T.C.A. § 32-11-105 provides a form for a living will under Tennessee law.  This statute provides a form that is acceptable under Tennessee law for a living will.

 

Additionally, T.C.A. § 32-11-104 provides specific requirements for the execution of a living will.  An executed living will can be signed by "any competent adult person" under T.C.A. § 32-11-104.  The declaration must be in writing and signed by the principal and is valid if it is attested by a notary public with no witnesses or witnessed by two witnesses without an attestation of a notary public.  If the witness method is used then at least one of the witnesses must not be related to the individual executing the living will document.  T.C.A. § 32-11-104 provides requirements for execution of the living will document as follows:

 

(a) Any competent adult person may execute a declaration directing the withholding or withdrawal of medical care to the person, to become effective on loss of competency. The declaration must be in writing and signed by the principal. The declaration 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 declaration or by operation of law then existing. The declaration shall contain an attestation clause that attests to the witnesses' compliance with the requirements of this subsection (a). The declaration shall be substantially in the form established in § 32-11-105. It is the intent of the general assembly that this subsection (a) have retroactive application.

 

A living will is a very important document in Tennessee.  Many of you may recall the Terry Schiavo situation where Terry Schiavo’s surviving husband and her parents fought for approximately seven years over whether life support should be removed because she was in a persistent vegetative state.  A living will allows you to make clear your exact desire should you be found in this unfortunate predicament.  It could help prevent legal challenges and inter-family fights over your intentions since you can make them clear in a living will.

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.

TAGS: Execution, Living Will
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Jason A. Lee is a Member of Burrow Lee, PLLC. Contact Jason at 615-540-1004 or jlee@burrowlee.com for an initial consultation on wills estate planning and probate issues.

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Tennessee Wills and Estates Blog
Jason A. Lee, Member of Burrow Lee, PLLC
611 Commerce Street, Suite 2603
Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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