TBA Law Blog

Posted by: John Day on Sep 1, 2016

Journal Issue Date: Sep 2016

Journal Name: September 2016 - Vol. 52, No. 9

The statute of limitations applicable to personal injury claims filed on behalf of persons with mental impairments has changed twice in five years. The first change was a draconian measure that put persons with an unsound mind at a severe disadvantage. The new law, effective for claims arising as of April 27, 2016, fixes the prior error but then reverses prior case law protecting the mentally impaired.

The new legislation is codified at Tenn. Code Ann. § 28-1-106 (b) – (d). The previous language of § 28-1-106 is now designated as subsection (a).

Subsection (a), which was modified by the 2011 legislation, provides that the personal injury statute of limitations for a person who is “adjudicated incompetent” is typically one year from the time legal rights are restored.[1] The prior version of the statute tolled the limitations period if the plaintiff was of “unsound mind” when the cause of action accrued; no judicial declaration of mental incapacity was required. The 2011 amendment tolled the statute of limitations only if plaintiff was “adjudicated incompetent.” Thus, if your family or friends lacked the knowledge and / or financial wherewithal to have you declared incompetent, or if you had no family or friends at all, you lost your legal rights if suit was not filed in one year.[2] This is true even if 12 preachers who happened to be neurosurgeons agreed that you were mentally incompetent to file suit when the cause of action accrued.[3]

The General Assembly fiddled with the law again in the spring of 2016. New subsection (b) provides that persons over the age of 18 are presumed competent.[4]

Subsection (c)(1) provides that “if a person entitled to bring the action at the time the cause of action accrued lacks capacity,” he or she, or his or her “representatives or privies, as the case may be” typically have one year to file suit after removal of such incapacity “except as provided in subsection (c)(2).” So, the addition of (c)(1) corrects the problem created by the 2011 amendment subsection (a), but then creates an exception to the rule.

The exception ((subsection (c)(2)) states that:

Any individual with court-ordered fiduciary responsibility towards a person who lacks capacity, or any individual who possesses the legal right to bring suit on behalf of a person who lacks capacity, shall commence the action on behalf of that person within the applicable statute of limitations and may not rely on any tolling of the statute of limitations, unless that individual can establish by clear and convincing evidence that the individual did not and could not reasonably have known of the accrued cause of action.

The purpose of (c)(2) is apparently to deny a person who lacks capacity the benefit of the tolling provision if he or she (a) is court-appointed a conservator or (b) had previously executed a valid durable power of attorney that gave the holder of the power the right to file a lawsuit[5] the benefit of the tolling provision. The change appears to overrule Sullivan v. Chattanooga Medical Investors L.P.,[6] which held that the statute of limitations remained tolled as long as the injured party remained “of unsound mind” up to the date of his or her death, notwithstanding the fact that the he or she had a loved one holding a power of attorney that authorized the filing of suit.[7]

Thus, under the current law, a court-appointed conservator or a person holding a durable power of attorney who has the right to file suit must file suit within the statute of limitations applicable to the injured party, absent proof by “clear and convincing evidence” that he or she did not and could not reasonably have known of the accrued cause of action.

Subsection (c)(3) provides that a person asserting lack of capacity and the lack of a fiduciary or other representative who knew or reasonably should have known of the accrued cause of action has the burden of proving the existence of such facts.

Subsection (c)(4) reinforces existing law that the presence of mental incapacity does not toll the expiration of a statute of repose.[8]

Subsection (d) tells us that the phrase “person who lacks capacity” shall have the same meaning as “person of unsound mind” that was in the pre-2011 law. The definition of that phrase was provided in Sherrill v. Souder: a person of unsound mind does not have the ability to “manage his or her day-to-day affairs” and “understand his or her legal rights and responsibilities, including the cause of action that has accrued.”[9]

The change to the law places a new obligation on conservators and those holding broad, durable powers of attorney. Many of these people are a loved one of the injured party, and will not necessarily be giving priority to claims investigation in a time of family turmoil. The General Assembly just added to their burden.


  1. To be precise, the subject statute does not reference a one-year statute of limitations.  Rather, it provides that the statute of limitations otherwise applicable for the particular cause of action is extended if the claimant is adjudicated incompetent.  I reference the one-year statute of limitations for personal injury claims and health care liability claims because this article concerns people who assert such claims.
  2. In health care liability actions, appropriate notice given within one year extends the statute of limitations by 120 days.  Tenn. Code Ann. § 29-26-121.
  3. The incompetence must be present when the right of action accrues.  Tenn. Code Ann. § 28-1-106 and 108.
  4. To be sure, this declaration is somewhat of a stretch, but at least we have a bright-line test: if you are alive, you are presumed competent.
  5. Most, but not all, durable powers of attorney include the right to file or defend a lawsuit.
  6. 221. S.W.3d 506, 508-513 (Tenn. 2007).
  7. Presumably, if an incapacitated person who has not granted another a durable power of attorney and who does not have a court-appointed fiduciary until more than one year after the injury-causing event the statute of limitations does not begin to run until the date the fiduciary is appointed.
  8. See, e.g., Mills v. Wong, 155 S.W.3d 916, 920-21 (Tenn.2005) (health care liability actions) and Penley v. Honda Motor Co., 31. S.W.3d 181, 186-89 (Tenn.2000) (product liability action).
  9. 325 S.W.3d 584, 600-01 (Tenn. 2010).  The issue of capacity is usually a question of fact.  Id.

John A. Day JOHN A. DAY is a plaintiff’s injury and wrongful death lawyer in Brentwood, Tennessee. His most recent book is Tennessee Law of Civil Trial.