A Tennessee durable power of attorney form allows an appointed individual (“agent”) to manage financial decision-making and affairs for another person (“principal”) throughout the principal’s lifetime, even if the principal becomes incapacitated.
The agent should be someone of utmost trust to the principal, such as a spouse or close family member. After signing, the agent gains authority to exercise their powers as the principal intended.
Laws
- Statute: §§ 34-6-101 — 34-6-112 (Uniform Durable Power of Attorney Act).
- Presumed Durable: No (§ 34-6-102).
- Signing Requirements: The principal’s signature is required.
- Notarization: Not required by law, but it’s recommended to have the form acknowledged by a notary public and signed before two witnesses, as these are the requirements for the health care power of attorney.
- Statutory Form: No.
Definitions
Durable Power of Attorney – A DPOA records the principal’s choice of someone else (the attorney-in-fact) to make decisions for them. It must include specific phrases to show that the attorney-in-fact can still make decisions if the principal gets sick or can’t make decisions for themselves.
The wording could include “This power of attorney shall become effective upon the disability or incapacity of the principal,” “This power of attorney shall not be affected by subsequent disability or incapacity of the principal,” or a similar phrase (§ 34-6-102).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
The principal can authorize or limit the authority of an attorney-in-fact to make gifts of the principal’s property in any way they see fit (§ 34-6-110).
If the form records the principal’s intent to give the attorney-in-fact full power to deal with the principal’s property, the attorney-in-fact shall have permission to make any monetary gifts of the property to any individuals or organizations outlined in §§ 170(c) and 2522(a) of the Internal Revenue Code.
Attorneys-in-fact should consider the following factors when making gifts on the principal’s behalf:
- The estate and gift tax effects the gift will inflict
- The principal’s existing estate plan
- The principal’s foreseeable obligations and maintenance needs
- The nature and value of the assets of the principal’s estate
Agent’s Authority Limitations
§ 34-6-109 states that without restriction or diminution of the powers vested in the attorney-in-fact or by law, the attorney-in-fact shall be able to act in the principal’s interest and exercise the powers within this statute. They shouldn’t need to procure any judicial approval or authorization. Please note that the agent’s powers will be subject to all other provisions of the instrument.
Revocation and Termination
If the principal passes away, any action the agent takes on the principal’s behalf is valid (unless otherwise invalid or unenforceable) if the agent doesn’t know about their death (§ 34-6-105).
If the court appoints a fiduciary to manage the principal’s personal property after the principal executes their DPOA, the fiduciary will have the authority to revoke the document (§ 34-6-104).
The principal can revoke their POA by creating a new document stating that all previous POAs are invalid. If they don’t want to create a new one, they can draft a revocation form stating their intentions to revoke the original document. If they recorded the original POA in their local county register’s office, they must also record the revocation document there.
Safekeeping and Registration
You don’t have to file your form at the state level because Tennessee doesn’t have a statewide registry. However, if you granted the agent the power to handle your real estate affairs, you should record your document in the applicable county’s land records office (or register of deeds).
While not necessary, consider giving a copy to any financial institutions integral to your financial affairs. This way, they can know whether your agent has the right to act on your behalf.
Additional Resources
- Tennessee Bar Association: Provides information on DPOAs.
- TN Center for Decision-Making Support: Offers legal resources for individuals with developmental disabilities.
- Tennessee Department of Human Services: Lists legal aid services, such as the Legal Aid Society of Middle Tennessee and the Cumberlands.
