Tennessee has adopted the Uniform Durable Power of Attorney Act (“Act”). The Act is stated in Tennessee Code, Title 34, Chapter 6, Part 1. A durable power of attorney is a type of power of attorney that will not be revoked if a principal is subsequently disabled or incapacitated. According to Tennessee laws a power of attorney is considered durable when it clearly shows in writing that it will not be revoked on a subsequent incompetence or disability of the principal. The agent’s acts on behalf of the principal when the principal is incapacitated will have the same effect as if the principal was not incapacitated and will bind the principal and the successors in interest. However, if a conservator, guardian or a fiduciary (jointly “guardian”) is appointed to the principal’s person and/or property, the agent will be accountable to the conservator and the principal. The court guardian has the power to revoke or amend the power of attorney like the principal.
Generally, a durable power of attorney is revoked by the principal’s death, or express revocation, or expiration of purpose or time. However, the principal’s death does not revoke or invalidate the actions of the agent when acted without actual knowledge of principal’s death, and the agent’s actions will bind the successors in interest. Likewise, in case of a non durable power of attorney the principal’s incapacity will not revoke or invalidate the actions of the agent when acted without actual knowledge of principal’s incapacity and the agent’s actions will bind the successors in interest. In such situations, the agent is required to produce an affidavit stating that the agent did not have actual knowledge of the principal’s death or revocation of the power of attorney.
A durable power of attorney should be recorded if the agent’s assigned authority requires him/her to execute deeds or instruments. If the power is recorded then the revocation should also be recorded.