Know the Law: New Hampshire Advance Directive and the Agent’s Authority

Published: Union Leader
May 1, 2022

Q: What is an Advanced Directive and what authority does it provide my Agent?

A: The New Hampshire Advance Directive contains two parts – the Durable Power of Attorney for Health Care (“DPOA”) and the Living Will. The DPOA nominates one or more Health Care Agents (“Agent”) to make health care decisions on your behalf in the event you become incapacitated. The Living Will serves to memorialize your wishes for end-of-life care and provide guidance for the Agent, or to the attending medical staff providing treatment. Absent a valid Advance Directive, your loved ones may be forced to obtain a formal Guardianship if you are unable to make medical decisions for yourself.

Both your DPOA and Living Will only become operative when you lack the necessary mental capacity to make health care decisions for yourself, as certified by your attending medical practitioner.

In 2021, New Hampshire enacted Senate Bill 74 (SB74) which altered the authority granted to an Agent under the DPOA. Historically, an Agent had to be affirmatively granted specific powers regarding health care decisions on the principal’s behalf. Under current law, a DPOA now grants an Agent “the authority to make any and all health care decisions on the principal’s behalf that the principal could make”, unless expressly limited in the DPOA. The statute now provides two significant powers which authorize the Agent to permit experimental treatment and implement a Physician Orders Life Sustaining Treatment (“POLST”) on the principal’s behalf.

An Agent’s authority to consent to experimental treatment, however, is not without limitation. Such consent is restrained to treatments that are authorized by an institutional review board and consistent with relevant state and federal regulations. Furthermore, in the absence of explicit authorization, the Agent’s authority to consent is limited to treatment for immediate life-threatening diseases or conditions, or serious diseases or conditions that, if left untreated, impairs function that is likely to substantially limit one or more major life activities.

An Agent may also authorize a POLST on behalf of a principal. A POLST is a set of emergency medical orders signed by the attending medical practitioner that identifies and documents a patient’s end-of-life treatment. A POLST can include various medical orders such as a Do Not Resuscitate or Do Not Transport order, to provide the principal’s end-of-life care to be limited as desired.

You should contact your attorney to find out more about New Hampshire’s important new Advance Directive.

Know the Law is a bi-weekly column sponsored by McLane Middleton. Questions and ideas for future columns should be emailed to Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.