If you're reading this post, it's likely someone told you that a family member may need a NH power of attorney. But you don't really know what a power of attorney is and you were too embarrassed to ask. Your reaction is totally normal - most people don't know what a power of attorney is. So let's explore this topic and figure out if a power of attorney is something your family member needs.
NH Power of Attorney - Basics
In New Hampshire, a power of attorney is a separate, written, standalone legal document. It isn't part of another estate planning document and isn't related to a last will & testament or a trust.
A power of attorney names two people - a principal and an agent. The principal is the person who thinks it is likely that now, or in the future, he will be unable to make important decisions. The agent is the person who the principal wants to make those decisions for him.
There are two types of important decisions the principal wants the agent to make for him - financial and health care. If the important decisions involve the principal's finances, then the power of attorney is call a power of attorney for financial affairs. If they involve the principal's health, it is called a power of attorney for health care.
These are two separate and distinct legal documents. That is, a principal could have a power of attorney for financial affairs and/or a power of attorney for health care. These documents are seldom, if ever, combined in a single legal document.
"If the important decisions involve the principal's finances, then the power of attorney is called a power of attorney for financial affairs."
Todd W. Stevens, Esquire
NH Financial Power of Attorney v. Health Care Power of Attorney
So what financial and health care decisions are covered by each type of power of attorney? Let's find out.
NH Financial Power of Attorney
In a financial power of attorney, the principal can choose which aspects of his/her finances to give the agent power over. The power of attorney typically contains a checklist of topics - banking, government benefits, property, retirement, investments, taxes, etc. - that describes in specific detail what the agent is allowed to do. The principal initials next to the topics he would like the agent to take over and leaves blank those areas that s/he still wants to manage himself/herself.
NH Health Care Power of Attorney
For health care, the power the principal gives to an agent can be broad: "I give my agent authority to make all health care decisions for me when I can't make these decisions myself." Or narrow: "I do not want my agent to authorize life sustaining treatment if I am actively dying, permanently unconscious, or suffering from a life-limiting, incurable and progressive condition." Again, the principal typically will initial next to specific sections s/he wants to include in the power of attorney while leaving blank other sections s/he wants to maintain control over.
FAQ's - NH Financial and Health Care Powers of Attorney
So now that you have a basic understanding of what a power a power of attorney is, let's answer some of the most frequently asked questions clients ask me.
When does an agent start making financial or health care decisions for a principal?
For a financial power of attorney, an agent usually begins acting for a principal immediately. However, New Hampshire law allows a principal to wait until he is found to be incapacitated by a doctor for the agent's authority to begin.
By contrast, an agent in a health care power of attorney typically doesn't make decisions for a principal until the principal is found to be incapacitated by a doctor.
Can a principal modify a NH power of attorney after he signs it?
No. A principal cannot make changes to either type of power of attorney after it is signed. In order to make changes, a principal must revoke his power of attorney and then create a new one with the changes included.
Can a principal revoke a NH power of attorney after he signs it?
Yes. A principal can revoke a power of attorney at any time time, so long as he has the capacity to do so. A principal typically cannot revoke a power of attorney after he is incapacitated. The definition of incapacity is governed by New Hampshire law and varies depending on whether the power of attorney is financial or health care.
