Tennessee Advance Care Directives:
A Rose By Another Name
by Germantown / Memphis Attorney
Eleven years ago, the Tennessee legislature created the Tennessee Health Care Decisions Act (“the HCDA”). Although one of its suggested purposes was to simplify the “legalese” of Tennessee’s living will and power of attorney for health care statutes, it seems to have created more confusion among both attorneys and non-attorneys. Rather than make the living will and power of attorney for health care statutes more “user friendly” to the public, the real intent behind the enactment of the HCDA seems to have been an effort to relieve liability on the part of hospitals and health care providers.
So what exactly is an advance directive? There are two types in Tennessee: instructional directives (regarding what treatment an individual would or would not want) and proxy directives (naming someone to make medical decisions on an individual’s behalf). In 1985, the Tennessee legislature codified (made into law) the right to self-determination in the Tennessee Right to Natural Death Act (“the Act”). The Act is Tennessee’s original living will statute and provides for an instructional directive called a living will. A living will allows you to specify what treatment you want in the event of a terminal condition. The phrase “terminal condition” is specifically defined in the statute. Five years later, driven mainly by a suggestion in the landmark decision of Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990), the Tennessee legislature enacted a statute that provides for a proxy directive called a power of attorney for health care. Still a type of advance directive, a power of attorney for health care allows you to select someone to make medical decisions for you when you can’t. Thus, by 1990 the state of Tennessee had codified the two types of advance care directives.
In 1991, the federal Patient Self-Determination Act (42 U.S.C. § 1395cc(f)) went into effect. This law required medical organizations that participate in Medicare and Medicaid to provide written information to patients at the time of their admission or enrollment about the patient’s rights under state law to make decisions about medical care. It does not require the patient to execute any type of advance directive; it merely advises a patient of their right to execute an advance directive. Surely if you’ve been to the doctor or a hospital since 1991 you’ve been asked if you have an advance directive. If you’ve been to our office to seek the preparation of a living will and/or a power of attorney for health care, then you have advance directives in place.
To recap: In 1991 Tennessee residents had state laws governing the creation of living wills and powers of attorney for health care and a federal law requiring Medicare and Medicaid providers to inform Tennessee residents of their right to self-determination and directing them to the Tennessee advance directive statutes. We had laws about advance directives! What more could one want or need?
Even though we had laws on our books providing for living wills and powers of attorney for health care and even though Medicare and Medicaid providers were mandated by federal law to disclose this information, Tennessee residents still weren’t executing advance care directives. Without an advance care directive, to whom should a doctor or hospital to look when hard decisions need to be made? What happens if a decision is made and that decision is later challenged? Medical providers felt increasing apprehension about potential liability. Enter the HCDA.
What’s the current law on advance directives in Tennessee? Do we still have laws about living wills and powers of attorney for health care or do we have a law about advance directives? What do we need to do if we have a living will and/or a power of attorney for health care? Anything? Do we have to choose what we want? How do we do that? What’s the difference?
The Tennessee living will and power of attorney for health care statutes coexist with the Tennessee advance care directive statute and are, in and of themselves, advance care directives. The HCDA did not repeal our living will and power of attorney for health care statutes. It doesn’t invalidate living wills and powers of attorney for health care that were signed before 2004. It doesn’t invalidate living wills or powers of attorney for health care that were signed after 2004, as long as in those documents there is a statement of an intent to comply with the living will and power of attorney for health care statutes. What the HCDA does in regards to advance directives is that it requires the board for licensing health care facilities to develop “model” advance directive forms for general use. These forms are merely suggested samples allowing for do-it-yourself advance directives.
While the HCDA provisions concerning advance directives may be in the best interests of your health care provider, please be reminded, if you are persuaded to prepare your own legal documents, that one who is his own lawyer has a fool for his client.