Who Holds the Power? - Articles

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Posted by: Carol Schwab on Sep 24, 2009

Journal Issue Date: Oct 2009

Journal Name: October 2009 - Vol. 45, No. 10

The Custom of Relying Solely on 'Next-of-Kin' Relationship to Authorize Health Care Decisions Is Not Supported Under Tennessee Law

Tennessee courts have clarified who has the right to make health care decisions on behalf of an incapacitated patient, and they have rejected the customary practice of relying solely on a "next-of-kin" relationship. Persons must have either actual or apparent authority to act as the patient's agent, and the bare fact of being "next-of-kin" does not automatically bestow that authority.

In Barbee v. Kindred Healthcare Operating Inc.,[1] the Tennessee Court of Appeals addressed the question of whether a patient's next-of-kin had authority to sign a binding arbitration agreement upon patient's admission to a nursing home.

In Barbee, Son assisted his mother with financial matters by paying her bills and handling other financial transactions for her. He did not have power of attorney or other written authorization from his mother to act on her behalf. In 2004, Mother was diagnosed with colon cancer and underwent colon surgery. After surgery, she was admitted into a nursing home, and Son signed the admission documents, including an arbitration agreement. At the time of her admission, Mother lacked capacity to make her own health care decisions. After his mother's death, Son filed suit against the nursing home alleging abuse and neglect. The nursing home filed a motion to dismiss the lawsuit and compel arbitration.

The trial court held that Son had apparent authority to sign the arbitration agreement in light of mother's incapacity and ordered the parties to arbitrate. The question on appeal was whether Son had authority to bind his mother's estate to arbitration. Finding that Son lacked either actual or apparent authority, the Court of Appeals reversed the order compelling arbitration.

Apparent authority. The court acknowledged that Son, as patient's only living relative, had appeared to be her agent by his actions of handling her finances and signing the consent and admission forms. However, apparent authority is granted by the actions of the principle (Mother), not by the actions of the agent. Because Mother was incapacitated, she was incapable of indicating that Son was her agent.[2] Thus, the court held that Son lacked apparent authority to sign the arbitration agreement.

Actual authority. The court analyzed whether Son had actual authority under the Tennessee Health Care Decisions Act of 2004 (HCDA).[3] Because Mother had never formally or informally appointed Son as her health care agent, and no court had given Son that authority, the next step was to see if her physician had designated a surrogate to make health care decisions on her behalf. The court found no indication from her medical record that her physician had designated anyone to act as her surrogate.

The court found that no one had the legal authority to make health care decisions on her behalf. Thus, the arbitration agreement that Son had signed upon admitting his mother to the nursing home was not binding upon her estate, despite the fact that he had signed it and that he was her sole heir.

The court specifically rejected the argument that it was the customary practice to rely upon an incapacitated patient's next-of-kin for consent in health care decisions. The court stated, "Regardless of custom, however, we find no basis in the common law for such next-of-kin to make health care decisions for an incapacitated relative, in the absence of actual or apparent authority as the patient's agent."

The Barbee case is one of several similar cases that have been decided by the Tennessee courts in the past year, each reaching its result using a similar analysis.[4] Although these cases have involved the question of enforcing a nursing home arbitration agreement, they put health care providers on notice that they cannot follow the custom of relying on next-of-kin for consent without also finding that the next-of-kin has either actual or apparent authority. Apparent authority can be inferred only from the actions of the patient, so if the patient is already incapacitated, he or she cannot bestow apparent authority, and the person claiming authority must have actual authority. Whether someone has actual authority is analyzed under the HCDA of 2004.

Tennessee Health Care Decisions Act of 2004 " Who Has Authority to Make Decisions for an Incapacitated Patient?[5]

When a patient lacks the capacity to make health care decisions, someone else must make these decisions on the patient's behalf. HCDA provides a comprehensive set of rules for determining who has this right. Health care providers must know the rules to ensure that the legally authorized person is giving consent for health care treatment on behalf of the patient. Failing to identify this person may give rise to a potential claim for medical battery or for lack of informed consent. Below is a list, in the order or priority, of who has the legal right to make health care decisions for an incapacitated patient.

First priority (health care agent). If the patient lacks capacity to make health care decisions, the health care provider should look first for someone who has been formally appointed by the patient.[6] Under Tennessee law, a patient may formally appoint a health care agent in one of three ways: (1) Advance Care Plan,[7] (2) Appointment of Health Care Agent[8] or (3) Durable Power of Attorney for Health Care.[9]

Second priority (judicially appointed guardian). If the patient has not formally appointed a health care agent (or if this person is not reasonably available),[10] the health care provider should next turn to a person who has been judicially appointed as the patient's guardian (also known as a conservator).[11] A judicially appointed guardian does not take precedence over a health care agent unless ordered by the court.[12]

Third priority (patient designated surrogate). If there is no health care agent appointed by the patient and if there is no judicially appointed guardian (or neither is reasonably available), the third person the health care provider should turn to is someone who has been informally appointed by the patient, called a "patient designated surrogate."[13] A patient informally designates a surrogate by personally informing the supervising health care provider. The designation may be oral or in writing and should be noted in the medical record.[14]

Physician Designated Surrogate. If the patient lacks capacity, has not appointed a health care agent, has not designated a surrogate, and does not have a judicially appointed guardian, (or none of them are reasonably available), the supervising health care provider must choose the patient's surrogate decision-maker and document the choice in the clinical record.[15] Tennessee provides a checklist to guide the supervising health care provider in choosing a surrogate who meets the following criteria.[16]

The surrogate must be an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values, who is reasonably available, and who is willing to serve.[17] The supervising health care provider may consider the following people to serve as surrogate in order of descending preference (not priority):[18]

  • the patient's spouse, unless legally separated;
  • the patient's adult child;
  • the patient's parent;
  • the patient's adult sibling;
  • any other adult relative of the patient; or
  • any other adult who satisfies the listed criteria.

The supervising health care provider must use the following criteria to identify the most appropriate person to serve as the patient's surrogate.[19] Ideally, the proposed surrogate:

  • has the ability to make decisions in accordance with the known wishes of the patient or in accordance with the patient's best interests;
  • has had regular contact with the patient prior to and during the incapacitating illness;
  • demonstrates care and concern for the patient;
  • is available to visit the patient during his or her illness; and
  • is available to engage in face-to-face contact with the health care providers for the purpose of fully participating in the decision-making process.

If the physician's choice of surrogate is challenged, there is a rebuttable presumption that the choice is valid. The burden of proving the invalidity of the selection is on the person who challenges the selection.[20] The physician who chooses the surrogate in good faith is not subject to civil or criminal liability or to discipline for unprofessional conduct.[21]

Designated Physician. If none of the people eligible to act as the surrogate are reasonably available, the designated physician (the physician who has primary responsibility for the patient's health care) may make health care decisions for the patient after the designated physician either (1) consults with and obtains the recommendations of the facility's ethics committee, or (2) obtains concurrence from an independent, nontreating physician.[22]

Physicians Play Major Role in Determining Who Acts on Behalf of Incapacitated Patients

Recent Tennessee case law illustrates the key role that physicians now play in determining who has the legal authority to make health care related decisions on behalf of a patient who is incapacitated. Perhaps more importantly, these cases illustrate the consequences of when an attending physician fails to designate a surrogate on behalf of a patient. When neither the patient nor the court chooses someone to make health care decisions for an incapacitated patient, that responsibility falls to the attending physician. When the attending physician does not record that choice in the patient's medical chart, the patient is without a legal surrogate for health care decisions.

Anecdotal evidence suggests that many Tennessee physicians are unaware of this change in the law, and as revealed by recent cases, they are not designating their choice of surrogate in the medical record. Consequently, some nursing homes lost their contractual right to compel arbitration to resolve disputes with the patient or patient's estate. The implications from these court decisions reach much further than nursing homes and arbitration agreements. If the next-of-kin has no legal authority to sign an agreement to arbitrate, one also can assume that the next-of-kin has no legal authority to sign a consent form, and the provider may be at risk for claims of medical battery or lack of informed consent.

For physicians who understand the law, the Tennessee HCDA actually has made it easier for them to obtain consent on behalf of patients who are incapacitated. But, for physicians who do not understand the protocols and who do not follow the requirements of the HCDA, it may prove to be a legal trap exposing them to potential claims for medical battery or lack of informed consent.


1. Barbee v. Kindred Healthcare Operating Inc., No. W2007-00517-COA-R3-CV (Tenn. App. 10/20/2008).
2. Wilson v. AmeriCare System Inc., No. M2008-00419-COA-R3-CV (Tenn. Ct. App. 3/31/2009) (absent an overt affirmation of agency, the authority to contract for medical services cannot be premised on apparent authority).
3. Tenn. Code Ann.  § 68-11-1801, et seq.
4. Hearn v. Quince Nursing and Rehabilitation Center, No. W2007-02563-COA-R3-CV (Tenn. Ct. App. 10/16/2008) (no authority under Health Care Decisions Act to sign arbitration agreement); McKey v. National Healthcare Corp., No. M2007-02341-COA-R3-CV (Tenn. Ct. App. 8/15/2008), no authority under Health Care Decisions Act to sign arbitration agreement); Mitchell v. Kindred Healthcare Operating Inc., No. W2008-00378-COA-R3-CV (Tenn. Ct. App. 11/19/2008) (health care power of attorney gave spouse authority to sign arbitration agreement); Estate of Mooring v. Kindred Nursing Centers, No. W2007-02875-COA-R3-CV (Tenn. Ct. App. 1/20/2009) (remanded to trial court for determination of authority of husband to sign arbitration agreement); Jones v. Kindred Healthcare Operating Inc., No. W2007-02568-COA-R3-CV (Tenn. Ct. App. 8/20/2008) (holding an attorney-in-fact under a general power of attorney may not convey to a third party the authority to make health care decisions for the principle); Ricketts v. Christian Care Center of Cheatham County Inc., No. M2007-02036-COA-R9-CV (Tenn. Ct. App. 8/15/2008) (holding Tennessee's Health Care Decisions Act does not apply retroactively). See also, Owens v. National Health Corp., 263 S.W.3d 876 (Tenn. 2007) (holding that the power of attorney authorized the attorney-in-fact to enter into the arbitration agreement on behalf of principle).
5. Some of the following material was excerpted from the factsheet, "Advance Directives," available in its entirety at: http://www.utmem.edu/Medicine/legaledu/UT/factsheets/AdvanceDirectives.pdf
6. Tenn. Code Ann.  § 68-11-1803.
7. http://health.state.tn.us/AdvanceDirectives/Advance_Care_Plan.pdf
8. http://health.state.tn.us/AdvanceDirectives/Health_Care_Agent.pdf
9. Tenn. Code Ann.  § 34-6-201 et seq.
10. "Reasonably available" means being readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health care needs. Such availability includes availability by telephone. Tenn. Code Ann.  § 68-11-1802(15).
11. Tenn. Code Ann.  § 34-1-101 et seq.
12. Tenn. Code Ann. .  § 68-11-1807.
13. Tenn. Code Ann.  § 68-11-1806(b).
14. Tenn. Code Ann.  § 69-11-1806(a).
15. Tenn. Code Ann.  § 68-11-1806(c).
16. http://health.state.tn.us/AdvanceDirectives/Surrogate.pdf
17. Tenn. Code Ann.  § 68-11-1806(c)(2).
18. Tenn. Code Ann.  § 68-11-1806(c)(3).
19. Tenn. Code Ann.  § 68-11-1806(c)(4).
20. Tenn. Code Ann.  § 68-11-1806(c)(6).
21. Tenn. Code Ann.  § 68-11-1810(c).
22. Tenn. Code Ann.  § 68-11-1806(c)(5).

CAROL SCHWAB CAROL SCHWAB is the director of Medical/Legal Education at the University of Tennessee Health Science Center, Office of Academic, Faculty, and Student Affairs. She is licensed to practice law in North Carolina and Missouri, and she is a former chair of the Elder Law Section of the North Carolina Bar Association. She has been a legal educator for more than 20 years, previously at North Carolina State University and at the Medical College of Georgia, and currently at UTHSC. This article is reprinted in revised form with permission from Legal Issues in Health Care Newsletter, vol. 2, Issue 1, March 2009, University of Tennessee Health Science Center.