How does a Tennessee stroke survivor who can't write execute a financial power of attorney?

Plain-English summary

Senator Randy McNally asked whether a Tennessee resident who could no longer write (a stroke survivor, for example) could execute a financial power of attorney, and whether videotape would suffice as the document. AG Robert E. Cooper, Jr. confirmed two paths to the same destination, but ruled out a videotape-only document.

Tennessee's Uniform Durable Power of Attorney Act (Tenn. Code Ann. §§ 34-6-101 to -111) requires the principal to designate the attorney-in-fact "in writing." There is no statutory provision for executing a power of attorney exclusively by videotape. But the writing requirement does not require the principal's own handwriting. Common law has long recognized two workarounds for incapacitated signers: (1) marking an "X" on the signature line, and (2) directing a third party (often a relative) to sign for the principal in the principal's presence. Modern variants include stamped, digital, or electronic signatures placed at the principal's direction. The principal must be present, must understand the document's terms, and must intend to authorize the signature.

If the disability is too severe for either common-law method, the better route is conservatorship. Tennessee's conservatorship statutes (§§ 34-1-101 to -131; 34-3-101 to -109) allow a court to appoint a conservator with partial or full authority to manage the disabled person's affairs. Section 34-3-103 lists the priority of appointment, starting with someone the disabled person designated in writing, then spouse, then child, then closest relative, then "other person."

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why isn't a videotape enough?
A: Tennessee's Uniform Durable Power of Attorney Act explicitly requires "writing." A videotape is not a written instrument. The opinion suggested that a video record of the principal's intent could be useful evidence (e.g., in a conservatorship proceeding), but it can't substitute for the document itself.

Q: How does the X mark work?
A: The principal makes an X on the signature line, with witnesses observing. In re Estate of Champion (Tenn. Ct. App. 2004) recognized this as a valid signature method when the signer cannot write a full name. The X needs to be the principal's act, not someone else's.

Q: How does a third party signing for the principal work?
A: The principal must (1) be physically present, (2) be apprised of the document's terms, and (3) intend to authorize the third party to sign because of the principal's physical disability. Doggett v. Allstate Ins. Co. (Tenn. Ct. App. 1992) found valid execution where an illiterate insurance applicant touched the pen while his grandson signed; the touching communicated intent.

Q: What about modern electronic signatures?
A: The opinion explicitly permitted stamped, digital, or other electronic signatures placed at the principal's direction, applying the same common-law authorization framework. The signature mechanism is less important than the principal's contemporaneous, informed authorization.

Q: What safeguards should the parties take?
A: The opinion recommended: two or more attesting witnesses (including the proxy signer) present during execution and signing attestation clauses; a notary witnessing and verifying the attestation; and recording the executed power of attorney with the appropriate county clerk. Cabany v. Mayfield Rehab. & Special Care Ctr. (Tenn. Ct. App. 2007) had refused to enforce a third-party-signed nursing home arbitration clause where these conditions weren't met.

Q: Why don't all witnesses sign at once?
A: Eslick v. Wodicka (Tenn. Ct. App. 1948), a will case, voided witnesses' attestation when they signed separately and only later acknowledged signatures. The same caution applies here: contemporaneous signing in the presence of the testator/principal forecloses challenges based on attestation defects.

Q: When is conservatorship the better route?
A: When the principal cannot meet the common-law authorization requirements, can't communicate intent, can't understand the document's terms, can't direct another to sign. At that point, the principal lacks legal capacity to grant a power of attorney, and the appropriate substitute is judicial appointment of a conservator under §§ 34-1-101 to -131 and 34-3-101 to -109.

Q: Who has priority for conservator appointment?
A: Per § 34-3-103, in order: (1) any person the alleged disabled person previously designated in writing; (2) spouse; (3) any child; (4) closest relative or relatives; (5) other person or persons. The court still applies a "best interest of the disabled person" test, so this priority is a starting point, not a guarantee.

Q: Will banks honor a power of attorney signed with an X?
A: As a practical matter, not always. The opinion noted: "in practice, some parties will not honor a power of attorney unless the power of attorney has been recorded in the appropriate county clerk's office." Recording, plus notary attestation and clear contemporaneous witness signatures, are the practical safeguards.

Background and statutory framework

Tennessee adopted the Uniform Durable Power of Attorney Act in its modern form at Tenn. Code Ann. §§ 34-6-101 to -111. Section 34-6-102 defines a "durable power of attorney" as a writing in which the principal designates an attorney-in-fact and includes language showing the principal's intent that the agent's authority survive subsequent disability or incapacity. The statute is permissive about the form, "in any form" and "executed in accordance with any recognized common-law method for executing written instruments" (Tenn. Farmers Life Reassurance Co. v. Rose (Tenn. 2007)). What it requires is writing.

Common-law execution principles fill in the gaps. The X-mark precedent (In re Estate of Champion) and the proxy-signature precedent (Doggett v. Allstate) both predate widespread electronic signatures but apply to them by analogy. The animating concern in both is whether the principal's intent and authorization were contemporaneous and unmistakable.

When intent and authorization cannot be reliably established, the conservatorship statutes provide an alternative. Sections 34-1-101 to -131 define the conservatorship framework; sections 34-3-101 to -109 govern appointment. The court determines the disabled person's needs and tailors the conservator's authority accordingly. The opinion noted that a digitally recorded deposition or other admissible evidence can be used in the conservatorship proceeding to demonstrate the disabled person's intent about who should manage their affairs, which makes the videotape useful even though it cannot be the operative document itself.

The opinion stays disciplined: the writing requirement is statutory and the AG cannot override it. But the writing requirement leaves room for common-law accommodations, and where those run out, the courts stand ready to appoint a conservator.

Citations and references

Statutes (as of 2010):

• Tenn. Code Ann. §§ 34-6-101 to -111 (Uniform Durable Power of Attorney Act)
• Tenn. Code Ann. §§ 34-1-101 to -131 (conservatorship)
• Tenn. Code Ann. §§ 34-3-101 to -109 (appointment of conservator)

Cases:

• Tenn. Farmers Life Reassurance Co. v. Rose, 239 S.W.3d 743 (Tenn. 2007) (Tennessee Supreme Court)
• In re Estate of Champion, 2004 WL 2439302 (Tenn. Ct. App. Oct. 27, 2004) (Tennessee Court of Appeals): X-mark execution
• Doggett v. Allstate Ins. Co., 1992 WL 43286 (Tenn. Ct. App. Mar. 10, 1992) (Tennessee Court of Appeals): proxy signature
• Cabany v. Mayfield Rehab. & Special Care Ctr., 2007 WL 3445550 (Tenn. Ct. App. Nov. 15, 2007) (Tennessee Court of Appeals): proxy execution requirements
• Eslick v. Wodicka, 215 S.W.2d 12 (Tenn. Ct. App. 1948) (Tennessee Court of Appeals): contemporaneous attestation
• Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291 (Tenn. Ct. App. 2001) (Tennessee Court of Appeals)
• Mitchell v. Kindred Healthcare Operating, Inc., 2009 WL 1684647 (Tenn. Ct. App. June 17, 2009) (Tennessee Court of Appeals)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-089.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

July 29, 2010

Opinion No. 10-89

Ability of a Person Possessing Limited Communication Skills to Execute a Power of Attorney

QUESTION

May a person possessing limited communication skills, for example, one who is unable to write as the result of a stroke, execute a financial power of attorney?

OPINION

A person who is unable to communicate in writing, such as someone who is impaired as the result of a stroke, by following specific procedures may execute a financial power of attorney. Additionally, in a legal proceeding following the filing of a proper petition, a court may appoint a conservator to assist that person with the management of that person's affairs.

ANALYSIS

This request concerns the ability of a person with limited communication skills, for example, someone who is impaired as the result of a stroke, to execute a power of attorney for financial matters. The request inquires if a videotape could be utilized to create a power of attorney for financial matters authorizing a spouse or next of kin to act for the principal.

Tennessee has enacted the Uniform Durable Power of Attorney Act, Tenn. Code Ann. §§ 34-6-101 to -111 (2007). "Durable power of attorney" is defined in Tenn. Code Ann. § 34-6-102, as:

a power of attorney by which a principal designates another as the principal's attorney in fact in writing and the writing contains the words "This power of attorney shall not be affected by subsequent disability or incapacity of the principal," or "This power of attorney shall become effective upon the disability or incapacity of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable, notwithstanding the principal's subsequent disability or incapacity.

(emphasis added). "The execution of a power of attorney creates a principal-agent relationship." Tenn. Farmers Life Reassurance Co. v. Rose, 239 S.W.3d 743, 749 (Tenn. 2007) (citing, e.g., Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296-97 n.1 (Tenn. Ct. App. 2001), perm. app. denied (2002)). "A power of attorney is a written instrument that evidences to third parties the purpose of the agency and the extent of the agent's powers." Tenn. Farmers Life Reassurance Co., 239 S.W.3d at 749 (citing Lempert v. Singer, 766 F.Supp. 1356, 1360 (D.V.I. 1991); Realty Growth Investors v. Council of Unit Owners, 453 A.2d 450, 454 (Del. 1982); Ho v. Presbyterian Church of Laurelhurst, 840 P.2d 1340, 1343 (Or. Ct. App. 1992); Schall v. Gilbert, 741 A.2d 286, 289 (Vt. 1999)); see also Mitchell v. Kindred Healthcare Operating, Inc., 2009 WL 1684647, at *4 (Tenn. Ct. App. June 17, 2009).

Tenn. Code Ann. § 34-6-111 (2007) provides that a written "power of attorney is effective at the date signed or may defer the effective date to the date the principal is determined to be disabled or incapacitated." The power of attorney instrument vests powers in the attorney in fact to act for the principal "without the necessity of procuring any judicial authorization." Tenn. Code Ann. § 34-6-109 (2007). "In the absence of specific legal requirements, a power of attorney may be in any form and may be executed in accordance with any recognized common-law method for executing written instruments." Tenn. Farmers Life Reassurance Co., 239 S.W.3d at 749 (citing Realty Growth Investors, 453 A.2d at 454); see also Mitchell, 2009 WL 1684647, at *4.

Tennessee statutory law regarding a durable power of attorney, Tenn. Code Ann. §§ 34-6-101 to -111 (2007), does not provide for execution of a durable power of attorney except in writing. There is no provision for executing a power of attorney exclusively by videotape. There are two ways at common law to execute a written instrument even if the person granting power of attorney is unable to sign a document. The first option is that the person may mark an "X" on the appropriate line. In re Estate of Champion, 2004 WL 2439302, at 2 (Tenn. Ct. App. Oct. 27, 2004). The second option at common law is that the person may have someone else sign the document at his or her direction. Doggett v. Allstate Ins. Co., 1992 WL 43286, at 2 (Tenn. Ct. App. Mar. 10, 1992), perm. app. denied (1992) (finding that illiterate insurance applicant's intent to have his grandson sign the application for him was communicated by the applicant touching the pen while his grandson signed). Utilizing present technology, in lieu of an "X," a person could also authorize the placement of a stamped, digital or other electronic signature. The person described in this request who is creating the power of attorney through a third party should be present, must be apprised of the terms of the document, and must intend to authorize the third party to sign as a result of that person's physical disability. See generally Cabany v. Mayfield Rehab. & Special Care Ctr., 2007 WL 3445550, at *6 (Tenn. Ct. App. Nov. 15, 2007) (arbitration clause in nursing home admission contract signed by a third party was found to be unenforceable in the absence of these conditions). In situations when a third party is authorized to sign, it would be advisable to have two or more attesting witnesses, including the proxy signatory, present and signing attestation clauses. See generally Eslick v. Wodicka, 215 S.W.2d 12, 15 (Tenn. Ct. App. 1948), cert. denied (Tenn. 1948) (statutory requirement that attesting witnesses sign a will in the presence of the testator was not met when attesting witnesses signed separately and later acknowledged the signatures). Additionally, it would be advisable to have a notary witness and verify that the attesting witnesses executed the attestation clauses on the document. Finally, in practice, some parties will not honor a power of attorney unless the power of attorney has been recorded in the appropriate county clerk's office.

Furthermore, Tennessee statutory law provides procedures by which a court may be petitioned to appoint a conservator with powers to act in whole or in part to manage the affairs of someone who is partially or totally disabled. See Tenn. Code Ann. §§ 34-1-101 to -131 and 34-3-101 to -109 (2007). Tenn. Code Ann. § 34-1-101 (2007) provides, in part:

(4) "Conservator" or "coconservator" means a person or persons appointed by the court to provide partial or full supervision, protection and assistance of the person or property, or both, of a disabled person;
...
(7) "Disabled person" means any person eighteen (18) years of age or older determined by the court to be in need of partial or full supervision, protection and assistance by reason of mental illness, physical illness or injury, developmental disability or other mental or physical incapacity[.]

Therefore, an appropriate procedure to assist someone who is partially disabled and has limited communication skills that prevent the person from writing would be to seek appointment by the court of a conservator. This process could involve, as is appropriate, the use of a digitally recorded deposition/statement or other admissible evidence of the person's intent that the spouse, next of kin, or other person assist in managing his or her affairs.

Tenn. Code Ann. § 34-3-103 (2007) provides:

Subject to the court's determination of what is in the best interest of the disabled person, the court shall consider the following persons in the order listed for appointment of the conservator:
(1) The person or persons designated in a writing signed by the alleged disabled person;
(2) The spouse of the disabled person;
(3) Any child of the disabled person;
(4) Closest relative or relatives of the disabled person; and
(5) Other person or persons.

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

STEVEN A. HART
Special Counsel

Requested by:
The Honorable Randy McNally
State Senator
307 War Memorial Building
Nashville, TN 37243