Author: Seth Connell, Esq.

• Four Key Aspects of a Tennessee LLC Operating Agreement

  

  When forming a Tennessee Limited Liability Company (LLC), having a well-structured and comprehensive operating agreement is crucial to ensure the security and continuing stability of your enterprise. An operating agreement is a legal document that outlines the internal operations, rights, responsibilities, and decision-making processes of the LLC. An operating agreement is not always legally required…

  

  When forming a Tennessee Limited Liability Company (LLC), having a well-structured and comprehensive operating agreement is crucial to ensure the security and continuing stability of your enterprise. An operating agreement is a legal document that outlines the internal operations, rights, responsibilities, and decision-making processes of the LLC.

  An operating agreement is not always legally required for Tennessee LLCs. But it is often a very good idea for practical reasons. This is especially so for multi-member LLCs where there are many more variables to keep track of and deal with.

  In this article, we will discuss four key aspects of a Tennessee LLC operating agreement that help an LLC run effectively.

  1. Introduction of the LLC

  The operating agreement should begin with a clear introduction to the LLC. It should detail the LLC’s legal name, principal place of business, registered agent, purpose, and the date of formation. Also wise to include are the business’s fiscal year, tax classification, and any additional trade names. This section establishes the groundwork for the agreement and provides essential information for both members and potential investors.

  The operating agreement must align with what the LLC has in its Articles of Organization. For example, a member-managed LLC’s operating agreement should not say it is a manager-managed LLC.

  It may also be wise to state certain information such as certain professionals involved in the business’s formation and/or operations. This can include your business attorney, accountant, and any other consultants involved.

  2. Operating Agreements Describe Membership Structure and Roles

  

  An operating agreement also outlines the membership structure of the LLC by specifying the roles and responsibilities of each member. This section should include details about how to bring in new members, the process for member resignation or removal, and the ownership percentage of each member.

  Clearly defining the management structure, whether member-managed or manager-managed, is vital to avoid potential disputes. If member-managed, the members will handle daily business decisions. But if manager-managed, the members will have to hire a manager to oversee the LLC’s operations.

  A succession plan can be a part of an operating agreement as well. This ought to coordinate with what the members’ respective estate plans are. An interest in an LLC is an asset included in a person’s estate. If a member dies, the operating agreement ought to have a process laid out for selling the member’s interest and paying the value of the share to his or her personal representative or beneficiaries.

  Additionally, some members may have financial rights, but not necessarily voting rights. Laying out who these members are and clearly stating what rights such members do and do not have helps to keep all members on the same page.

  3. Capital Contributions and Allocations of Profit & Loss

  A well-drafted LLC operating agreement describes the capital contributions each member makes to the LLC and how members will divide profits and losses. This section should also cover the distribution of profits, including when and how distributions are available. Addressing these financial aspects ensures transparency and equity among members.

  Tracking capital contributions is critical to ensure that all members’ investments are properly recorded. Should a member wish to sell his or her interest, there must be a paper trail of what that member put into the business initially, along with any additional contributions.

  The allocation of profit and loss is also especially important. an LLC is a disregarded entity for tax purposes by default. The IRS treats a multi-member LLC as a partnership, and a single-member LLC as a sole proprietorship. Unless otherwise specified, under Tennessee law, members share in profits and losses equally.

  If you desire something different for your LLC, your operating agreement may specify such allocation. Remember that the LLC is one of the most flexible business arrangements available—far more flexible than the older corporation form. The LLC operating agreement can even waive some provisions of Tennessee’s default laws.

  4. Operating Agreements Cover Decision-Making and Voting

  

  The operating agreement should detail the decision-making process within the LLC. This ought to highlight major business decisions that require unanimous consent versus those that are permissible with a simple majority vote. Address issues such as quorum requirements, voting rights, and procedures for resolving disagreements.

  The operating agreement also ought to specify the scope of authority members and/or managers have to make business decisions. For example, an LLC may authorize its members/managers to make decisions in the ordinary course of business without requiring a formal vote. This may include routine purchases of inventory and authorizing payroll for the workforce.

  On the other hand, decisions such as contracting with new vendors, signing commercial leases, and hiring management personnel likely should be up to voting members/managers. The operating agreement can specify either way.

  Additionally, in an increasingly digital age, an LLC may wish to overtly allow members to attend meetings through video conferencing. The LLC’s operating agreement may permit this, or prohibit it based on what the members desire.

  A clear decision-making framework prevents conflicts and promotes efficient governance. For example, let’s say an LLC has two members, each with 50% ownership, voting rights, and sharing of profits and losses. If there is no mechanism for breaking a tie vote, the business could be stuck until the parties reach a compromise.

  The operating agreement can provide for remedies in such a situation. The engagement of business consultants or some objective criteria can provide a way to help break a tie and resume business decisions. Even mediation or arbitration may be on the table.

  Whatever the mechanism is, the operating agreement can lay out a procedure for it so that the business can continuing operating even during disagreements.

  Final Notes on Tennessee LLC Operating Agreements

  A meticulously-drafted LLC operating agreement is a cornerstone of successful business management and member relations. Each LLC will have different provisions based on its operations, membership composition, and objectives. The key is to ensure that your operating agreement provides clarity among all members about how the business will operate daily and at a high level.

  In an age of increasing entrepreneurship, it is vital that new businesses have internal governing structures in place that will help them through both good and hard times.

  For customized assistance in drafting a Tennessee LLC operating agreement, contact Connell Law, PLLC to schedule your free consultation.

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• An Overview of the Types of Business Entities Available in Tennessee

  

  Tennessee law allows for many different types of business entities. Here is an overview of some of the most common ones and when they may be appropriate.

  

  When starting a business in Tennessee, it’s important to consider the various types of business entities available and choose what’s right for you. Each type comes with its own set of legal, financial, and operational implications. Understanding the differences between them will help you make an informed choice that aligns with your business goals and objectives.

  Here is an overview of the types of business entities available under Tennessee law to consider. We will highlight some of the key characteristics of each and discuss some situations where such business entity may be desirable.

  Sole Proprietorship

  A sole proprietorship is the simplest type of business entity. In a sole proprietorship, an individual operates their business as the only owner, often with a doing-business-as (DBA) designation. While it’s easy to set up, the owner assumes full personal liability for business debts and obligations.

  This may be appropriate for business owners who are in industries with minimal liability exposure. For example, financial coaching does not involve making fiduciary decisions on a client’s behalf and is not a regulated occupation.

  But if your business will involve more serious and complex interactions with customers, especially if there are fiduciary duties, another type of business entity is likely preferable.

  General Partnership

  

  Unlike other types of business entities, general partnerships can happen “accidentally.” Under Tennessee law, the association of two or more persons to carry on as co-owners of a business for profit forms a partnership, whether or not they intended to do so. Accidental partnership is rare, though.

  Partners share profits, losses, and management responsibilities. Like a sole proprietorship, partners are personally liable for the business’s obligations, including personal injury and other tort claims.

  General partnerships do not require a written partnership agreement, though they are a good idea to set clear expectations for all parties involved.

  When there are multiple owners, it is important to diligently track each partner’s capital contributions to the business. The profits and losses flow through to each partner’s tax returns. Working with a CPA to track the partnership’s financials is highly advisable.

  Limited Liability Partnership

  The limited liability partnership (LLP) provides partners with limited personal liability for the actions of other partners. This shields individual partners from the responsibility arising from the negligence or misconduct of other partners. This separation encourages the creation of new businesses without undue risk to one’s personal assets based on other partners’ actions.

  The LLP provides a liability shield that general partnerships do not. General partners may be liable for the actions of other partners. But partners in an LLP are generally only personally liable for their own actions.

  LLPs must file formation documents with the Secretary of State, unlike general partnerships. The filing must include information such as the principal office, mailing address, registered agent, and a statement of the LLP’s business.

  This type of business entity may be desirable for professional occupations like law, CPA, and architecture firms.

  S-Corporation

  

  An S-Corporation is a type of business entity the Internal Revenue Code authorizes. The owners of a corporation are the shareholders. A board of directors makes high-level business decisions, and corporate officers carry out those decisions. The S-corporation is a tax designation that provides the corporation with two main benefits.

  The first benefit is limited liability protection for shareholders. The second is that profits and losses to pass through to shareholders’ personal tax returns, avoiding double taxation. Profit and losses flow through regardless of whether the S-corporation makes distributions.

  An S-corporation is “closely-held.” Shares of this type of business entity are not for sale on the open market. Federal law does not permit more than 100 shareholders in an S-corporation. S-corporations also cannot have more than one class of stock, meaning all shareholders have the same type of voting rights.

  An S-corporation may be a good type of business entity for those who are looking for private investors. Additionally, for business owners that desire to carry out business according to their personal values, the Supreme Court has held that closely-held businesses may be exempted from certain regulations that violate the owners’ religious beliefs.

  C-Corporation

  The C-corporation is also a type of business entity that provides limited liability to shareholders. They have complex governance structures and are subject to corporate taxation, which can result in double taxation.

  Companies that issue publicly-traded stock are C-corporations. Household names like Home Depot, Apple, Google (Alphabet), etc. are all C-corporations. C-corporations can have different classes of stock, unlike S-corporations. This means some shareholders may have rights that others do not.

  Like S-corporations, C-corporations generally have a board of directors, corporate officers, shareholders, and employees. The board of directors votes on major decisions and corporate officers carry out those decisions.

  If you plan on selling stock on the open market, such as the Nasdaq, a C-corporation may be the right choice for your business. But there are significant record-keeping requirements with this type of business entity. The board of directors must make decisions carefully to protect investors’ economic interests.

  Limited Liability Company

  

  A limited liability company (LLC) is one of the most flexible of all types of business entities. It combines fundamental elements of corporations and partnerships to get the best of both worlds. The LLC offers the protection of the corporate veil to shield its members (owners), as well as pass-through taxation and reduced record-keeping requirements.

  The LLC is a disregarded entity for tax purposes by default. The IRS treats single member LLCs as sole proprietorships, and multi-member LLCs as partnerships. But an LLC may elect S-corporation tax status by timely filing the Form 2553 with the IRS.

  Tennessee has two sets of LLC law. The “old act” is the Tennessee Limited Liability Company Act, and the “new act” is the Tennessee Revised Limited Liability Company Act. Both are in effect without a sunset provision. For purposes of this article, we will address the new act’s provisions for LLCs formed after January 1, 2006.

  There are three types of LLCs in Tennessee: member-managed, manager-managed, and director-managed.

  In a member-managed LLC, all members participate in management decisions. This is optimal for businesses where the members actively participate in the business (think owner-operators).

  In a manager-managed LLC, members appoint a manager or a group of managers to handle the day-to-day operations. This structure can be optimal when some members are passive investors.

  A director-managed LLC is a Tennessee-unique structure. A board of directors manages the LLC, akin to a corporation. This allows for a clear separation between ownership and management. This type of business entity looks more like a corporation than an LLC.

  Professional businesses can also operate as LLCs. Many law firms use the PLLC (Professional Limited Liability Company) structure. All members must generally be qualified to practice the profession in order to qualify for the PLLC.

  Tennessee LLCs may have a written operating agreement, but the law does not require this. For multi-member LLCs, this is highly advisable to set clear expectations among all members and to have a record of initial capital contributions.

  The LLC is one of the most common types of entities that new businesses use. Its highly flexible approach and liability protection offer the best of both sole proprietorships/partnerships and corporations.

  Which Type of Business Entity Should I Choose?

  Selecting the right type of business entity involves many factors. Important considerations include liability protection, tax implications, management preferences, and future growth prospects.

  It’s highly advisable to consult both legal and financial professionals to ensure you’re making the best decision for your specific business situation and plans.

  Connell Law, PLLC can assist with business formation and navigating Tennessee business law. Our team is here to provide you with a free consultation to ensure you’re setting your business up for success from the very beginning.

  Contact us today to schedule your consultation and take the first step towards a prosperous business journey.

  Request a Consultation

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• Parents of College Students Need Powers of Attorney; Here’s Why

  

  College students are legally adults, but may still need assistance while away at school. A power of attorney enables you as the parent to assist your child if it becomes necessary.

  

  As college students gear up to head back to school, there’s a lot to think about. Textbooks, tuition, roommates, class schedules, and more. But something that Tennessee parents often overlook is having Powers of Attorney in place for their college students.

  While it might not be at the top of the back-to-school checklist, having Powers of Attorney in place before the kids leave for college is a crucial step for both practical and legal reasons.

  In this article, we’ll discuss why Powers of Attorney are needed, along with two important aspects of life that these documents cover.

  Why is a Power of Attorney Needed?

  It’s easy to consider your college student as your child. And that’s true. But once your child reaches the age of 18, the law considers him or her to be an adult. This means the access you previously had over his or her life fundamentally changes.

  Whereas before, you could act in almost any capacity necessary on the child’s behalf, you cannot do that when your college student is over 18. Your now-adult child must authorize you to speak and/or act on his or her behalf. Otherwise, the school, doctors, financial institutions, etc. cannot speak with you about your student’s status.

  This may be a difficult concept to grasp, especially after 18 years of being able to act for your child. But the law declares 18 to be the age of majority. At this stage, things change. And it’s important to be proactive so that you can assist your college student while he or she is away.

  With a Power of Attorney, there is an agency relationship. The one making the Power of Attorney is the Principal, and the one receiving the power is the Agent. The Agent owes a duty of care to the Principal and must follow instructions closely when using this authority.

  Here are the types of situations these Powers of Attorney will help you effectively manage, should the need arise.

  Power of Attorney for Healthcare Helps During Medical Emergencies

  

  When students move away to college, they gain newfound independence and autonomy. But this independence comes with its own set of challenges, particularly in times of medical emergencies.

  Accidents and illnesses happen unexpectedly. If a student is unable to communicate his or her wishes, having a Durable Power of Attorney for Healthcare in place makes a world of difference. For a college student, typically a parent would serve as Agent, but others may also fill this role.

  A Durable Power of Attorney for Healthcare grants the Agent legal authority to communicate with healthcare providers and make medical decisions on your student’s behalf. This is especially critical if the student is incapacitated and is unable to make those decisions or communicate.

  This could involve deciding on treatment options, surgeries, or even end-of-life care. Without this legal document, you as the parent will face roadblocks in accessing important information or making vital decisions during a medical crisis.

  This is especially important if your college student is attending school a significant distance away from where you live. So, if you live in Murfreesboro, but your student is in Knoxville, you’ll still be able to protect his or her interests.

  The Durable Power of Attorney for Healthcare enables you to act promptly should the need arise.

  Power of Attorney for Property Helps with Financial Matters

  College is a period of significant financial growth and responsibility. Students have bank accounts, credit cards, student loans, and other financial matters to manage in their own names for the first time.

  If your student becomes incapacitated, having a Durable Power of Attorney for Property allows the parent, as the Agent, to step in and handle financial affairs on his or her behalf.

  The Durable Power of Attorney for Property is separate from the Durable Power of Attorney for Healthcare. Both documents generally ought to be durable, though—meaning the authority survives the Principal’s incapacitation.

  A Durable Power of Attorney for Property can provide varying levels of authority. This can range from managing day-to-day expenses to handling major financial transactions. If you are assisting your college student with paying tuition, it is wise to have this in place to ensure smooth processing of all financial obligations.

  Without these legal documents in place, parents will encounter difficulties accessing their child’s financial accounts or making critical financial decisions in situations if their student is unable to do so.

  Final Thoughts on Powers of Attorney for Parents of College Students

  

  Sending a child off to college is a significant milestone for both parents and students. While the focus is often on academics and personal growth, it’s equally important to address practical and legal considerations.

  Establishing Powers of Attorney before your student heads back to school is a proactive step. It will provide peace of mind during a highly formative and sometimes volatile stage of life.

  Speak with your college-aged child about the critical need for these documents. Since the student is an adult, he or she will be the one creating the power and giving it to you or whichever person chosen for Agent.

  Connell Law, PLLC assists college students and their parents with preparing Powers of Attorney. To get these important documents in place, reach out to us today to schedule your free consultation.

  Request a Consultation

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• Lessons from Aretha Franklin’s Will Dispute

  

  Aretha Franklin left behind two wills after she died. The will dispute was a years-long mess. Here are some lessons from this sad situation.

  

  A Michigan jury recently found that a handwritten document found beneath a couch cushion was Aretha Franklin’s will. The dispute was whether this document, or a prior handwritten document from 2010, was her will. After the trial, nearly 5 years after her death, the jury found that the later document was valid.

  This is a tragic situation for all parties. Litigation takes a toll on both plaintiffs and defendants. There are some important lessons from this dispute regarding our own estate plans.

  Holographic Wills Can Be Valid, But Are a Bad Idea

  A handwritten will is called a Holographic Will. These types of wills generally need to be in the testator’s handwriting and signed by the testator. One of the issues the jury had to decide was whether there was a signature on Aretha Franklin’s Will. The mark in question was the letter “A” with a smiley face inside of it.  

  In Michigan, where Aretha lived, a holographic will must meet certain requirements. It must be dated, signed by the Testator, material portions must be in the Testator’s own handwriting, and it must be evident that the Testator intended the document to be a Last Will & Testament.  

  Not all states recognize holographic wills, though. Tennessee recognizes them, but the Testator must adhere to the requirements in Tenn. Code Ann. § 32-1-105. The will’s material provisions must be in the testator’s handwriting, the testator must sign it in his or her own handwriting, and two witnesses must prove the handwriting.   

  The jury found that the letter “A” with a smiley face was her signature. This made Aretha’s 2014 handwritten will effective. In spite of this, one of her sons may still be able to get portions of the 2010 will to dispose of Aretha’s estate. The story is not even over yet, 5 years after she passed away.

  The lesson here is that holographic wills are a recipe for litigation. With standard wills, there are witnesses and a self-proving affidavit to admit the will to probate. But DIY estate planning documents, such as Aretha Franklin’s wills, often don’t adhere to the traditional formalities.  

  Taking these chances is a very risky endeavor. And loved ones will have to deal with the fallout during a time of grieving.  

  Work with Professionals to Handle Your Assets

  

  Building off the previous point, this is a textbook example of why it’s important to have professional guidance with handling your assets. As well-intentioned as Aretha may have been, and as talented an artist as she was, it’s no substitute for professional advice.  

  Especially considering that her estate was worth nearly $80 million, she and her beneficiaries would have greatly benefited from financial planners, accountants, and attorneys helping with the plan. Due to the dispute and estate tax problems, her estate’s value has dropped to $6 million.  

  Both of Aretha Franklin’s Wills were handwritten. Don Wilson, an attorney who worked with her for nearly 30 years, said that she was a very private person and may not have wanted to share her financial information with an attorney.  

  But by not sharing this with an attorney, she ended up sharing that information with the world. Attorneys have ethical duties of confidentiality and putting our clients’ interests ahead of our own. This also generally applies to financial planners and accountants.  

  While it may be uncomfortable to process through an estate plan with other people, it’s important to get ahead of these difficult situations so that there is certainty for your loved ones. Professionals who work in these fields can help you plan for those times so there is less of a burden left behind during such times.  

  Inform Your Representatives Where Your Documents Are

  Sabrina Owens, a niece, found Aretha Franklin’s Wills in 2019. The 2010 Will was in a locked cabinet and the 2014 Will as beneath a couch cushion. It was only after Owens scoured Aretha’s house that she discovered these documents.  

  Part of the argument at trial was that the documents’ location should affect which one is actually Aretha Franklin’s Will. The earlier one was in a place where one might expect to find a Will, and the other was in a hidden and unusual place.

  But a Will’s location is not an element of determining whether it’s valid.

  Nonetheless, making it known where these documents are makes the process much easier. It’s highly advisable to notify your representatives where your documents are and how to access them. If it takes a long time to locate your documents, this will delay transferring your legacy.  

  For your Will, notify your Executor(s) where the original is and how they can access it, along with any copies. While copies of a Will can be admitted to probate in limited situations, if there is a question of fraud, the court will likely require the original.

  For those with Trusts, notify the Successor Trustee(s) and any Trust Protector(s) where the Trust Agreement is. You should also provide a copy of the Trust to them, along with any Certification of Trust.

  With Powers of Attorney, your Agents should at least have electronic copies of the documents. This also applies to your Living Will. If you lose your legal capacity, your Agent may need to act quickly to protect your interests. In that situation, there is no time for a frantic document search.

  Final Thoughts on Aretha Franklin’s Will

  

  Even a little bit of planning goes a long way. If Aretha Franklin had an attorney prepare her Will and then executed her Will with the typical formalities, this likely would not have happened.  

  While Aretha was a highly successful performer and built great wealth, she’s not the only type of person who needs estate plans. Estate planning is important for everyone, and it’s for right here, right now.  

  To put your estate plan in order, reach out to Connell Law, PLLC to request a consultation. We look forward serving you in passing on your legacy.

  Request a Consultation

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  The information provided in this article is for informational purposes only. This is not intended as legal advice for any particular situation or individual. Reading this article does not create an attorney-client relationship. Recipients of this content should refrain from acting on the basis of this article’s content without first seeking appropriate legal counsel. Some links may lead to other websites operated by third parties. Connell Law, PLLC includes these links solely as a convenience to you. The presence of these links does not imply a responsibility for the linked site or an endorsement of the linked site, its operator, or its contents.

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• What Does the Term “Unalienable Rights” Mean?

  

  The phrase “unalienable rights” has largely lost the intended impact it had in 1776. Let’s explore just how important and groundbreaking this sentiment was.

  

  Around Independence Day, we often reflect on these words: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

  But what does that one unusual word mean—unalienable?

  No, it has nothing to do with Martians. This is a very specific and purposeful word that the Founders used in the Declaration of Independence given their historical and legal context.

  To appreciate the full meaning of that phrase, let’s do a little history lesson.

  Property in the English Common Law

  At the time of the American founding, our country was under the English common law. This legal system stretched back hundreds of years. Some of the most groundbreaking legal concepts in human history came through the common law, leading up to the Declaration of Independence and its iconic sentiment of certain rights being unalienable.

  One of the most enduring aspects of the common law system is how it handled property rights. Because England was an aristocratic society for many centuries, a great deal of its property law seems quite foreign to us today. 

  The common law developed different levels of ownership rights. Many of these levels of ownership are still around today. The highest level of ownership was fee simple absolute, where the person who held the property had a complete right to use and dispose of it.

  Another type of property interest was the life estate. With this interest, the person holding the life estate could use the property for his or her life. But the property would revert back to the original grantor or to a third party after that person died.

  A third common type of property interest was the fee tail. You may be familiar with this concept if you’ve watched Downtown Abbey. In the hit PBS show, the family had to find a male heir to take over the estate because of the “entail.”

  Why couldn’t Lord Grantham simply name any successor he wanted? Well, I’m glad you asked.

  Restraints on Alienation

  

  The term alienation is a fancy way of saying “transfer.” And the transfer can be almost any type: sale, gift, inheritance, etc. A fee tail property interest contains a restraint on alienation, limiting to whom could be transferred.

  The grant of property in fee tail would often be “to [Name] and the heirs of his body,” or something similar. This particular wording meant that the property could only be passed down to the owner’s natural children. Illegitimate children largely did not have inheritance rights, though.

  So, the fee tail acted as a restraint on alienation, meaning that the property could only go to certain qualifying people. Aristocratic families often used this type of property interest to preserve their estates for as long as possible.

  Sometimes, there would be significant restraints on alienation. Property might even be considered unalienable in some situations. The English courts frequently upheld these restraints, with fairly few limitations (such as the infamous Rule Against Perpetuities).

  What it boils down to is that restraints on alienation put limitations on the right to give property away. The objective was to keep property for certain uses or within certain families.

  Now let’s consider how this history ties into the American idea of unalienable rights.

  How Certain Rights Being Unalienable Affects Us Today

  In modern times, state legislatures have abolished many restraints on alienation, including the fee tail. Property owners have a far greater freedom of disposition now than in centuries past.

  But the legal landscape during the American Founding directly influenced the content of the Declaration of Independence. When it comes to fundamental rights, the sentiment of the Declaration still lives on.

  The intent of that document was to express something historically unprecedented. The rights of life, liberty, and the pursuit of happiness are things that cannot be taken from us. But it also meant much more than that.

  In the Founders’ view, unalienable rights are intrinsic aspects of our being that we cannot give away. These are inherent to who we are as human beings and are not just whatever a government decides its citizens deserve.

  The purpose of having legal protections for individual rights is so that prevailing social passions and trends do not threaten those rights. By enshrining individual rights into constitutions, these topics are not up for debate anymore.

  Freedom of speech, freedom of the press, freedom of religion, the right to bear arms, protection against deprivations of life, liberty, or property without due process of law, etc.—these are just some of the legal rights that Americans hold as we carry out life, liberty, and the pursuit of happiness.

  The ratification of the Bill of Rights puts a label on these unalienable rights saying, “Do not touch.” The development of such a legal system, considering most of human history, is nothing short of incredible.

  Final Thoughts on Our Unalienable Rights

  

  As we celebrate Independence Day, remember that rights also come with responsibilities. As U.S. citizens and residents, we ought to use our unalienable rights to serve our communities and build others up. I take the view that we should be cultivators instead of consumers when it comes to how we live.

  We should vigorously defend these unalienable rights, and repulse attacks against the invaluable legal protections that uphold them. By defending those fundamental rights, we will find our nation’s long-term well-being, even if it’s difficult to see it today.

  As an attorney, I am incredibly honored to have taken an oath to uphold the Constitutions of the United States and of the State of Tennessee. These documents are a part of what make our society a beacon of hope to the rest of the world, even with our faults, as we strive for a more perfect union.

  Thanks for reading!

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• What is a Living Will and How Does it Work?

  

  A living will, or advance medical directive, helps to provide certainty in a very difficult healthcare situation.

  

  Estate planning involves more than just a will or a trust. Other documents are important to ensure your assets are protected and properly managed. Another aspect of estate planning is our healthcare, especially if we are incapacitated. One particular document that is important for our healthcare wishes is a living will.

  A living will, also known as an advance medical directive, is a short document in which you explain what your end-of-life wishes are. If this is not in place, it’s possible that decisions about your healthcare could be decided in the courts.

  Let’s discuss how to avoid that.

  What’s in a Living Will?

  A living will lays out your desired manner of care in an end-of-life situation or if you are in a persistent vegetative state. Depending on your values, you may have particular desires one way or another regarding your care.

  Specifically, in this document, you make advance decisions about things like artificial nutrition/hydration, life support, pain alleviation, and resuscitation. Many people express a desire not to be kept on artificial life support if they are brain-dead and there is no reasonable expectation of recovery.

  The living will puts these desires into writing and informs healthcare providers and other important people what your decisions are ahead of time.

  That last part—ahead of time—is specifically why a living will is important to have in place. The decision has already been made. This greatly reduces the risk of additional stress on family members during a time when you are unable to make that decision for yourself.

  Expressly stating your wishes on whether to be kept alive on artificial life support, or to be resuscitated after the heart stops, ensures that whatever treatment you receive is in line with your values on this sensitive topic.

  How to Make a Living Will

  Living wills must be written documents. Oral declarations regarding end-of-life care instructions do not have the same effect in carrying out your wishes. The declarant may create a living will that matches the statutory form in Tenn. Code Ann. § 32-11-105, or a substantially similar form that expresses clear intent to accept, refuse, or withdraw medical care.

  A living will is effective upon execution. In Tennessee, any competent adult can make a living will. The document must in writing and signed by the person making it. The living will is valid if it is signed by two disinterested witnesses, or if it is notarized. Tenn. Code Ann. § 32-11-104.

  Healthcare providers generally must comply with your living will. If an attending physician cannot, in good conscience, carry out your directive, the healthcare provider must take good faith steps to have another physician carry out the directive. Failure to take such steps can lead to civil liability and be grounds for suspending or revoking his or her license to practice medicine. Tenn. Code Ann. § 32-11-108.

  If you want to make changes or revoke your living will, you may do so by executing a document indicating revocation. You may, if you still have legal capacity, orally express revocation of a living will to your attending physician. Tenn. Code Ann. § 32-11-106.

  What Happens if I Don’t Have One?

  

  By stating expressly what you desire regarding artificial nutrition/hydration and life support, it reduces the potential for conflict. Where there is no direction and family members disagree on how to care for one who is in such a position, there could be litigation.

  A famous case involving this type of situation was Terri Schiavo‘s case in the early 2000s. After suffering cardiac arrest, Terri was in a permanent vegetative state. Her husband desired to remove her feeding tube, which would cause Terri to die of natural causes. Her parents disagreed.

  The case between Terri’s husband and her parents lasted for seven years. It went to the Florida Supreme Court and the United States Supreme Court. Congress and the President got involved.

  It was an absolute mess. And it was headline news across the country.

  Why did it get to that point?

  There was not a living will communicating her desires about how to handle this type of situation.

  With a relatively short document in place, most or all of that litigation and publicity could have been avoided. While the situation would have been no less tragic, there would have at least been greater privacy and carrying out of Terri’s wishes (whatever they may have been).

  Final Thoughts on Living Wills

  

  Confronting our own mortality is a difficult thing. We don’t like to think about the idea of being so physically damaged that we cannot even function.

  But it happens. And in order to protect not just ourselves, but our loved ones, we need to make our desires known on this subject.

  The living will is fairly simple and helps to avoid many problems during a difficult situation. This is a hard conversation to have, but working with a professional can help to make the process easier.

  Reach out to Connell Law, PLLC today to schedule your free consultation on your living will and all other estate planning needs.

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