Know the Law: End of Life Decisions

Denis P. Dillon
Director, Trusts & Estates Department
Published: Union Leader
May 1, 2011

Q.  I am having a medical procedure done at the hospital. If something goes wrong and I am unable to make decisions for myself how can I be sure that my loved one is in a position to make end of life decisions for me?

A:  Many people are surprised to learn that in New Hampshire, once an individual has been found to be unable to make medical decisions, family members are not authorized to make medical decisions for them, unless such a designation has been made in an advance directive. Therefore, without an advance directive a spouse, child or parent will be forced to appear in probate court to request that the court appoint them as guardian.  This is even the case for parents with children over the age of 18 who are  students!

An advance directive is a prior grant of authority to an agent to make health care decisions for the principal/patient.  The agent’s power to make decisions springs into effect upon the incapacity of the principal/patient.  Under New Hampshire law the principal’s medical care providers determine the principal’s incapacity at the time of treatment.

The choice of the health care agent is crucial.  Obviously, the agent needs to be able to make life and death decisions.  Before choosing an agent, the principal and prospective agent should discuss the principal’s wishes and the agent’s ability to deal with life and death decisions.  It is also wise for the principal to name an alternate agent in the event the primary agent cannot or will not act.

If a  patient has not signed an advance directive and no longer has legal capacity to sign such a document, New Hampshire law requires a court appointment of a guardian to act on the patient’s behalf. The appointment of a guardian is a formal public legal process, which can be time consuming and costly. An advance directive is an attractive alternative to a guardianship.

The best way to ensure that your loved ones are able to make end of life healthcare decisions for you is to sign an advance care directive.  To be effective the document is signed in the presence of two witnesses or in the presence of a notary public all of whom sign.  The document is relatively simple to prepare and sign.

As the much publicized controversy in the Terry Schiavo Case dramatically highlighted, there are widely divergent views on end of life decisions.  Advance directives help individuals minimize the potential for the kind of strife that divides families, the country and courts.  Simply choosing in advance someone to make medical and end of life decisions reduces stress in an otherwise stressful situation.