Living Wills Under Tennessee Law Are Very Important

Tennessee law provides the authority to execute a "Living Will" according to the "Tennessee Right to Natural Death Act" which has been law since the mid-1980’s.  A Living Will allows you to make decisions related to end of life issues like 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 provides the legislative intent for a “Living Will” 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 specific form for a Living Will in Tennessee.  This statute provides a form that is acceptable under Tennessee law for a Living Will and many individuals in Tennessee have executed this document to remove these decisions from their loved ones. Decisions about letting a person die naturally can be some of the hardest decisions a family member will ever need to make about a loved one.  But this decision is also very important.

T.C.A. § 32-11-104 also provides specific requirements for the execution of a living will.  An executed living will can be signed by "any competent adult person" according to 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 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 exec...

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...

Can a Healthcare Provider be held Civilly Liable for not Following the Provisions of a Living Will in Tennessee?

A healthcare provider, including a physician, can be held civilly liable for not following the provisions of a living will executed properly under Tennessee law.  T.C.A. § 32-11-108 provides as follows:

(a) Any physician or other individual health care provider who cannot in good conscience comply with the provisions of such a living will, on being informed of the declaration, shall so inform the declarant, or if the declarant is not competent, the declarant's next of kin or a legal guardian, and at their option make every reasonable effort to assist in the transfer of the patient to another physician who will comply with the declaration. Any health care provider who fails to make good faith reasonable efforts to comply with the preceding procedure as prescribed by the attending physician shall be civilly liable and subject to professional disciplinary action, including revocation or suspension of license. The health care provider shall not be subject to civil liability for medical care provided during the interim period until transfer is effectuated.

(b) A physician or other health care provider who, by no fault of such physician as health care provider, has not received notice of a declaration, revocation, or other change shall not suffer civil, administrative, or criminal penalties under this chapter.

As a result, if a physician or other healthcare provider cannot comply with a living will in good conscience then this statute provides a requirement that they make efforts to assist in the transfer of the patient to another physician who will comply with the living will declaration.  If the healthcare provider does not make reasonable efforts to comply with the provisions of the living will or to transfe...

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

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. 

Under Tennessee law, can a living will be revoked?

A living will declaration can be revoked at any time regardless of the declarant's mental state or competency.  It can be revoked by certain methods found in T.C.A. § 32-11-106 which includes written revocation or an oral revocation made to the attending physician.  T.C.A. § 32-11-106 provides as follows:

A declaration may be revoked at any time by the declarant, without regard to the declarant's mental state or competency, by any of the following methods, effectively communicated by the declarant to the attending physician or other concerned health care provider:

(1) Written revocation by the declarant, dated and signed by the declarant.

(2) By oral statement or revocation made by the declarant to the attending physician. This revocation shall be made a part of the declarant's medical record by the attending physician.

As a result, even if an individual's mental state or competency is in question, if the revocation of the living will complies with one of the two provisions in this statute, then the living will is revoked.