68-11-1803 - Oral or written individual instructions Advance directive for health care When effective Decisions based on best interest assessment Out-of-state directives Construction. - Tennessee Statutes

68-11-1803. Oral or written individual instructions Advance directive for health care When effective Decisions based on best interest assessment Out-of-state directives Construction.

(a)  An adult or emancipated minor may give an individual instruction. The instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises.

(b)  An adult or emancipated minor may execute an advance directive for health care, which may authorize the agent to make any health care decision the principal could have made while having capacity. The advance directive must be in writing and signed by the principal. The advance directive must either be notarized or witnessed by two (2) witnesses. An advance directive remains in effect notwithstanding the principal's last incapacity and may include individual instructions. For the purposes of this section, a witness shall be 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 advance directive or by operation of law then existing. A written advance directive shall contain an attestation clause that attests that the witnesses comply with the requirements of this subsection (b).

(c)  Unless otherwise specified in an advance directive, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity.

(d)  A determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, must be made by the designated physician. In making such determination, a designated physician is authorized to consult with such other persons as the physician may deem appropriate.

(e)  An agent shall make a health care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.

(f)  A health care decision made by an agent for a principal is effective without judicial approval.

(g)  An advance directive may include the individual's nomination of a guardian of the person.

(h)  An advance directive that is executed outside of this state by a nonresident of this state at the time of execution shall be given effect in this state, if that advance directive is in compliance with either the provisions of this part or the laws of the state of the principal's residence.

(i)  No health care provider or institution, and no health care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, or nonprofit hospital plan, shall require the execution or revocation of an advance directive as a condition for being insured for, or receiving, health care.

(j)  Any living will, durable power of attorney for health care, or other instrument signed by the individual, complying with the terms of title 32, chapter 11, and a durable power of attorney for health care complying with the terms of title 34, chapter 6, part 2, shall be given effect and interpreted in accord with those respective acts. Any advance directive that does not evidence an intent to be given effect under those acts, but that complies with this part may be treated as an advance directive under this part.

[Acts 2004, ch. 862, § 1.]