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New Hampshire Solves Power of Attorney Issue

In New Hampshire—as in other parts of the country—health care providers had no legal authority to provide medical care except in emergencies to an incapacitated patient without the consent of a legally authorized adult. A New Hampshire law enacted last year solved this issue by providing a default mechanism to name an agent when the patient has no living will or DPOAHC. This can also be used when the original documents can’t be found or when there is a valid DPOAHC but the authorized agent is not available.

As explains in “Money Matters: NH health surrogacy laws,” this person is known as a surrogate decision-maker. He or she has the same authority as an agent named in a durable power of attorney for health care. The degrees of family relationship that determine how a surrogate is chosen are in the following priority order:

  1. Spouse, civil union partner, or common law spouse (if no divorce proceeding, separation agreement or restraining order);

  2. An adult son or daughter of the patient;

  3. A parent of the patient;

  4. An adult sibling of the patient;

  5. An adult grandchild of the patient;

  6. A grandparent of the patient;

  7. An adult aunt, uncle, niece, or nephew of the patient;

  8. A close friend to the patient;

  9. An agent with financial power of attorney or a conservator; or

  10. The guardian of the patient’s estate.

If there’s more than one surrogate candidate at the same priority level, it becomes their combined responsibility to make a reasonable effort to come to a decision on their loved one’s care. The start of a guardian proceeding places the surrogate’s authority on hold until the outcome of that hearing. Once named, a surrogate may act up to 90 days. This ability terminates if:

  1. The patient regains health;

  2. A guardian is appointed; or

  3. The patient is near death.

A patient may always reject the surrogate, and even though there are default provisions in place, healthcare providers must still undertake “reasonable inquiries” as to whether the patient has an existing guardian or authorized agent under DPOAHC. If they don’t find any, they may identify a surrogate. At that point, the provider names the surrogate and that person is recorded in the patient’s medical records. The physician may revoke the surrogacy if the surrogate is unwilling or can’t act.

If a person does decide to prepare a DPOAHC, then the selections need to be reviewed regularly. This is an important document to have, so discuss its ramifications with an estate planning attorney and ask about other estate planning documents such as wills, durable powers of attorney for finances, and perhaps a trust.

Reference: (March 3, 2016) “Money Matters: NH health surrogacy laws”

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