As an experienced New Hampshire estate planning attorney, I've fielded questions from all sorts of people regarding NH living wills, NH durable powers of attorney for healthcare, and NH advance health care directives. Some people call this kind of document a health care proxy, although that term isn't used in New Hampshire. I've listed the most frequently asked questions below in no particular order.
Q. What is a New Hampshire advance health care directive?
In New Hampshire, the term "advance health care directive" simply refers to a living will and/or a durable power of attorney for health care. The term itself has no independent meaning outside of these two documents.
"Without a NH living will or NH durable power of attorney for health care, your verbal instructions to family only carry the weight a surrogate decision-maker decides to give to them."
Q. What is a New Hampshire living will?
A New Hampshire living will is a written document signed by you in which you state your instructions for your end of life care. You give a copy of your living will to your loved ones, hospital, doctor and long term care facility so that they can follow your wishes.
Q. What is a New Hampshire durable power of attorney for health care?
A New Hampshire durable power of attorney for health care is a written document signed by you in which you pick someone else (called your health care agent) to make health care decisions for you when you can't make those decisions for yourself. You give a copy of your durable power of attorney for health care to your loved ones, hospital, doctor and long term care facility so they know who will be making decisions for you.
Q. What's the difference between a NH living will and a NH durable power of attorney for health care?
In a NH living will, you decide what your end of life decisions will be. Your medical providers read your living will and follow those instructions.
In a NH durable power of attorney for health care, you choose someone else to make health care decisions for you when you can't make those decisions for yourself. These decisions may involve end of life care, but typically cover any time you are incapacitated. Once you regain your capacity to make health care decisions, the durable power of attorney for health care is no longer in effect.
Q. Can I have both a New Hampshire living will and a New Hampshire durable power of attorney for health care?
Yes. As stated previously, a NH living will only applies to health care decisions involving end of life care, whereas a NH durable power of attorney for health care applies any time you can't make health care decisions for yourself.
Q. What happens if I don't have a NH living will, NH durable power of attorney for health care, or NH advance health care directive?
In the absence of these documents, New Hampshire law determines who makes medical decisions for you and what those decisions will be.
In terms of who makes decisions, the New Hampshire surrogacy statute (NH RSA 137-J:34 et seq) establishes an order of priority as follows:
1. your spouse;
2. your adult children;
3. your parents;
4. your adult siblings;
5. your adult grandchildren;
6. your grandparents;
7. your aunts, uncles, nieces and nephews;
8. your close friend(s).
Note that medical decisions must be made by majority vote if there is more than one person is in a given category (e.g. the majority of your siblings, adult children, etc.).
In terms of what those decisions are, your surrogate is entitled to make all "health care decisions" for you, with some exceptions beyond the scope of this article.
"Health care decisions" are defined in the New Hampshire statute as "informed consent, refusal to give informed consent, or withdrawal of informed consent to any type of health care, treatment, admission to a health care facility, any service or procedure to maintain, diagnose or treat an individual's physical or mental condition except as prohibited in this chapter or otherwise by law." NH RSA 137-J:2, IX.
Q. I already told my family I don't want to kept alive by machines if I'm in a coma. That's good enough, right?
Without a NH living will or NH durable power of attorney for health care, your verbal instructions to family only carry the weight a surrogate decision-maker decides to give to them. As explained above, a surrogate decision maker is entitled to make almost all health care decisions for you without consulting with other family members.
Also, end of life health care decisions are seldom as black and white as you might think. People use the NH living wills, NH durable powers of attorney for health care and NH advance health care directives to clarify for loved ones and medical providers just what their end of life wishes are (and are not).
Specifically, living wills and durable powers of attorney for health care in New Hampshire use the broad term "life-sustaining treatment", instead of "machines" or "life support", to cover the extensive array of end-of-life medical treatments that you or your health care agent may decide to start, continue, or stop.
"Life sustaining treatment" means "medically administered nutrition and hydration, mechanical respiration, kidney dialysis, or the use of other external mechanical or technological devices. Life sustaining treatment may include drugs to maintain blood pressure, blood transfusions, and antibiotics." NH RSA 137-J:2, XIII.
Also, New Hampshire has replaced "coma" with "permanently unconscious". "Permanently unconscious" means "a lasting condition, indefinitely without improvement, in which thought, awareness of self and environment, and other indicators of consciousness are absent as determined by an appropriate neurological assessment by a physician in consultation with the attending physician or an appropriate neurological assessment by a physician in consultation with an APRN."
Q. Can I change my New Hampshire Living Will, Durable Power of Attorney for Health Care or Advance Health Care Directive after I sign it?
No. Unlike most legal documents, you can't make changes to your New Hampshire Advance Health Care Directive after you've signed it. You have to revoke your existing advance health care directive and fill out a new one that includes the changes you want to make.
Q. How do I revoke my New Hampshire Advance Health Care Directive?
There are three ways to revoke your Advance Health Care Directive under New Hampshire law. First, you can tell your health care agent, loved ones, doctor, hospital, etc. that you have revoked it. Second, you can notify them in writing that it is revoked. Finally, you can destroy, deface, tear or otherwise obliterate it such that it is clear you intended to revoke it.
Q. Are my financial affairs governed by a New Hampshire Living Will, New Hampshire Durable Power of Attorney for Health Care, or New Hampshire Advance Health Care Directive?
No. New Hampshire law requires you to have a separate legal document for when you want someone to manage your financial affairs. This document is called a durable power of attorney for financial affairs.
Q. What does “durable” mean in “durable power of attorney”?
In this context, “durable” means your health care agent continues to make health care decisions for you after you can’t make those decisions for yourself. It’s durable because it survives your incapacitation.
I hope you found this article helpful! We're here to help if you have any questions on New Hampshire Living Wills, Durable Powers of Attorney for Health Care and Advance Health Care Directives.
Best Regards!
