How Much Does it Cost to Have a Will Drafted in Tennessee?

One of the most frequent questions I am asked is “How much does it cost to have an attorney draft a will in Tennessee?”  People often believe that obtaining necessary and important documents such as a Will, Power of Attorney, Healthcare Power of Attorney and Living Will is a very expensive and complicated process.  This is absolutely not true!  Many people are surprised when I tell them the actual cost of having these documents prepared.  With this in mind, I have decided to share my pricing for these documents so that people can be properly informed on the actual costs to have an estate planning package drafted by an attorney.  The cost is very insignificant when compared to the importance of having your final affairs in order. 

For the vast majority of individuals, my cost to prepare an estate package including a Will, Power of Attorney, Healthcare Power of Attorney and Living is a flat rate of $450.00.  I charge this same flat rate for both single individuals and married couples.  This is the total charge, which means for a married couple, a total of eight documents would be prepared for $450.00. 

As I have previously indicated in my blog, all of these documents are essential for everyone to have.  This price assumes everything, with the exception of signing the documents, can be done by email and telephone for the exchange of information and discussion about estate planning decisions to be made based on the individual circumstances.  This is generally a very easy process.  I have detailed questionnaires that you, and if applicable, your spouse can complete on your own time to make all of the necessary decisions.  You can email, fax or mail the questionnaires back to me once complete.  From there, I draft the estate planning documents.  I then send them to you for approval and will address any questions you may have.  Once the documents are in final form, a meeting is scheduled at my office in Nashville, Tennessee, to sign (aka “execute”) the documents.  The execution of all the documents with a notary and witnesses takes approximately 45 minutes.

Some people prefer to meet with me in person to discuss strategy and decisions before the docu...

Is a Confidential or Fiduciary Relationship Automatically Found in the Context of a “Legal Relationship” or a “Family Relationship” in Tennessee?

The Tennessee Court of Appeals decision of Tamala Teague v. Garnette Kidd, No. E2011-02363-COA-R3-CV, 2012 WL 5869637 (Tenn.Ct.App. 2012) discussed confidential relationships under Tennessee and what duties arise in such relationships.  This is important in the context of Tennessee estate law because often disputes arise about certain transactions around the time of death.  Claims of undue influence arise because of these transactions especially when one party has a power of attorney over an elderly individual. 

A confidential relationship is a relationship where confidence is placed by one in the other and the recipient of that confidence is the dominant personality, with the ability, because of that confidence, to influence and exercise dominion over the weaker or dominated party.  In general terms, it is any relationship that gives one person the ability to exercise dominion and control over another.  The burden of proof regarding a confidential relationship rests upon the party claiming the existence of such a relationship.  Confidential relationships can assume a variety of forms, and thus the courts have been hesitant to define precisely what a confidential relationship is.

Confidential relationships generally arise in two situations: (1) “legal relationships” and (2) “family and other relationships.”  In the “legal relationships” context, a confidential relationship arises when there is some legal connection between the dominant party and the weaker party, such as when a dominant party is granted a power of attorney.  Indeed, “a confidential relationship arises as a matter of law when an unrestricted power of attorney is granted to the dominant party.” Id. (emphasis added). In contrast, “[f]amily and other relationships” do not necessarily give rise to a confidential relationship per se; therefore, to establish a confidential relationship in this situation, contestants must prove the elements of “domination and control” in order to establish that the free will of the weaker party was destroyed and that the will of the dominant party was substituted. 

Teague at 8 (citations omitted). 

LEGAL RELATIONSHIP:

Does a power of attorney create a fiduciary relationship between the grantor and the attorney-in-fact?

Under Tennessee law a power of attorney document is available to provide an individual with great powers to handle many aspects of the grantor’s life.  Specifically, T.C.A. § 34-6-109 outlines the powers of a power of attorney under Tennessee law.  Usually this is used when an individual becomes incompetent and lacks mental capacity to make decision for themselves.

The recent Tennessee Court of Appeals decision of Tamala Teague v. Garnette Kidd, No. E2011-02363-COA-R3-CV, 2012 WL 5869637 (Tenn.Ct.App. 2012) discussed the relationship between the grantor of a power of attorney and the attorney-in-fact.  The Tennessee Court of Appeals found:

The execution and exercise of a power of attorney establishes a fiduciary relationship between the attorney in-fact and the grantor of the power.  The fiduciary is obligated to deal with the property of his (or her) principle in the utmost good faith.  The duties of loyalty and honesty are also a part of a fiduciaries obligation.  In Tennessee, a presumption of undue influence arises when the dominate party in a fiduciary relationship receives a benefit from the other party.  This presumption may be rebutted only by clear and convincing evidence of the fairness of the transaction."

Teague at 7.  (Citations omitted).  As a result, when someone is the "attorney-in-fact" as established in a power of attorney document by a grantor, it is very important to consider the fiduciary responsibilities in this relationship.  This is especially true when there is any transaction between the two that benefits the attorney-in-fact.  Tennessee law creates a presumption that in this circumstance when the dominant party (the attorney-in-fact) receives a benefit from the granting party then such a transaction is presumed to be the result of undue influence.  If this occurs, this can be considered a breach of the fiduciary relationship.

Can a durable power of attorney for healthcare be revoked under Tennessee law?

A durable power of attorney for healthcare is an important document that allows you to decide who can make certain medical decisions for you should you become incapacitated and unable to make such decisions.  Tennessee law provides that a durable power of attorney for healthcare can be revoked under T.C.A. § 34-6-207.  This statute provides as follows:

(a) The principal may, after executing a durable power of attorney for health care, do any of the following:

(1) Revoke the appointment of the attorney in fact under the durable power of attorney for health care by notifying the attorney in fact orally or in writing; or

(2) Revoke the authority granted to the attorney in fact to make health care decisions by notifying the health care provider orally or in writing.

(b) If the principal notifies the health care provider orally or in writing that the authority granted to the attorney in fact to make health care decisions is revoked, the health care provider shall make the notification a part of the principal's medical records and shall make a reasonable effort to notify the attorney in fact of the revocation.

As a result there is a clear Tennessee statute that allows the revocation of a durable power of attorney for healthcare in a relatively easy fashion.  It can be done orally or in writing.  It is almost always better that the revocation be in writing so there is clear evidence of the revocation and there is no question about the decision.

What is a durable power of attorney for healthcare under Tennessee law?

A durable power of attorney for healthcare is a document that provides powers to an “attorney-in-fact” to make healthcare decisions for the person executing the document (called the “principal”) if they become incapacitated.  There is not requirement for the “attorney-in-fact” to be an attorney; rather he or she can be a spouse, child or anyone the principal desires.  This document is mainly used to provide powers to a specific individual for the purpose of making healthcare decisions for the principal in case that individual is no longer able to make those decisions.

In Tennessee there are specific requirements for a durable power of attorney for healthcare to be effective.  They are found, in part, in T.C.A. § 34-6-203(a) which provides as follows:

(a) An attorney in fact under a durable power of attorney for health care may not make health care decisions unless all of the following requirements are satisfied:

(1) The durable power of attorney for health care specifically authorizes the attorney in the fact to make health care decisions;

(2) The durable power of attorney for health care contains the date of its execution; and

(3) The durable power of attorney for health care must be in writing and signed by the principal. The durable power of attorney for health care 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 durable power of attorney for health care or by operation of law then existing. The durable power of attorney for health care shall contain an attestation clause that attests to the witnesses' compliance with the requirements of this subdivision (a)(3). It is the intent of the general assembly that this subdivision (a)(3) have retroactive application.

The first requirement is the document must actually authorize the attorney-in-fact to make healthcare decisions.  The second requirement is the durable power of attorney for healthcare must contain the date it is executed.  The third requirement is the document must be in writing and signed by the principal.  The principal’s signature must either be attested by a notary public with no witnesses, or it must be witnessed by two witnesses without an attestation by a notary public. 

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Is there a priority or preference for who should be appointed conservator for a “disabled person” in Tennessee?