Allan F. Ramsaur, TBA Executive Director
(800) 899-6993 or (615) 277-3200
aramsaur@tnbar.org
March 4, 2004
Health Care Decision Act Advances
Despite reservations expressed on behalf of the estate planning and probate bars, the Tennessee Health Care Decisions Act, which would repeal the current living will and durable power of attorney for health care statutes cleared the House Judiciary Committee Civil Practice Sub-Committee this week. It could be headed for a vote before the full House Judiciary Committee on Wednesday, March 10. The bill drafted by a task force convened by the Department of Public Health, and in which some health care law practitioners participated, establishes a default system of surrogates to whom health care practitioners can turn in the absence of an “advance directive.” An advance directive is “a written statement” of intent by the patient with respect to life-ending decisions.
An amendment offered by the group would acknowledge that living wills and durable powers entered into before July 1, 2004, the effective date of the repeal of the living will and durable power statutes, would be treated as advance directives. However, the living will and durable power statutes would disappear and a living will or durable power entered into before that date would only be “given effect” under the new act.
Proponents argued that since any writing like a living will or durable power is an advance directive under the bill, there is no need to continue living will or durable power statutes. The TBA has advanced the notion that lawyers and clients are comfortable with the current statutes and that the living will and durable powers statutes should exist parallel to the act. (You can download a copy of the bill (SB 2312, by Davis and HB 2581 by Fowler at http://www.tba.org/legisflash/2004/SB2312.pdf )
The amendment offered by the proponents that grandfathers in living wills and durable powers written before July 1, 2004, can be downloaded at http://www.tba.org/legisflash/2004/grandfatheramend.doc. The amendment proposed on behalf of the TBA can be downloaded at http://www.tba.org/legisflash/2004/tbaamend.doc.
The TBA will mount a renewed effort in full committee. If members have a view on this legislation, you may wish to contact members of the House Judiciary Committee.
Workers’ comp debate continues
Committees continued to take testimony on the issues surrounding Tennessee’s workers’’ compensation system. A “highlight” in the presentations before the Ad-Hoc Workers’ Compensation Committee late Wednesday was the testimony of Professor Rick Wilson of the University of Tennessee at Chattanooga. While he supported adjustments and “tweaks” to the system, he felt that wholesale changes such as replacing reliance on the court system with administrative tribunals would not be helpful. He noted that these tribunals were not part of our Anglo-Saxon legal heritage and were borrowed from, of all people, the French. He noted that they didn’t work as well as our system, in his opinion.
Legislation of interest to the bar
Legislation sponsored by Rep. Dewayne Bunch (R Cleveland) to abolish the Tennessee Plan and require election of all appellate court judges was scheduled to be heard by the full Judiciary Committee of the House. It has been passed by the subcommittee in the absence of a number of members the week before. The sponsor decided at the last minute to ask that the bill be rolled to next week and the committee complied with his request. Members who favor the Tennessee Plan need to contact their representatives and senators this weekend and ask them to vote against Rep. Bunch’s bill when it comes before any body in which they have a vote!
Legislation sponsored by Rep. Frank Buck (D Dowelltown), which would alter substantially the service of process in Tennessee and which has been discussed in detail in prior editions of LegisFlash, was rolled two weeks at the sponsor’s request. TBA does not feel that any legislation is necessary in this area. The Secretary of State’s office has also expressed concerns about the costs of setting up a licensing procedure for process servers and the possible abolition of the long-arm mechanism.
Various bills concerning custody and visitation continue to appear before committees of the General Assembly. The Bar is concerned that the discretion of courts to fit the custody and visitation arrangements to the circumstances of the case not be compromised by legislation which would either mandate or establish a presumption that equal time with both parents is the custody and visitation arrangement that should be ordered. The realities of school life alone make this a questionable assumption for school-aged children.
Keep up to date on legislation of interest
The TBA bill tracking service lets you read abstracts of bills, check their status in both houses, find out who is sponsoring them and link to full versions of the legislation.
TBA Watch List Monitor close to 300 bills and resolutions of interest to the Tennessee legal community.
TBA Action List Monitor legislation in which the TBA has an interest of record — bills the TBA initiated, bills on which the TBA has taken a position or bills on which the TBA has policy.
Questions, comments? Contact TBA Legislative Counsel Steve Cobb at SAC@wallerlaw.com or TBA Executive Director Allan F. Ramsaur at aramsaur@tnbar.org
