New Hampshire Revocation of Durable Power of Attorney for Health Care

STATUTORY REFERENCE

ALL REFERENCES ARE TO THE NEW HAMPSHIRE REVISED STATUTES

REVOCATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE

(§§ 137-J:1 through 137:J-14 )

Definitions

"Advance directive'' means a directive allowing a person to give directions about future medical care or to designate another person to make medical decisions if he or she should lose the capacity to make health care decisions. The term "advance directives'' shall include living wills and durable powers of attorney for health care.

"Qualified patient'' means a patient who has executed an advance directive in accordance with this chapter and who has been certified in writing by the attending physician or APRN to lack the capacity to make health care decisions.

A "terminal condition" is an incurable condition caused by injury, disease, or illness which is such that death is imminent and the application of life sustaining measures would, within the reasonable medical judgment of the attending physician and a consulting physician, only postpone the moment of death.

"Permanently unconscious" is a lasting condition, indefinitely and without change, in which thought, awareness of self and environment, and all other indicia of consciousness are absent as determined by the attending physician and a consulting physician.

"Artificial nutrition and hydration" means invasive procedures such as nasogastric tubes; gastrostomy tubes; intravenous feeding or hydration; and hyperalimentation. This does not include sustenance (the natural ingestion of food or fluids by eating and drinking).

§ 137-J:1. Purpose and Policy

I. The state of New Hampshire recognizes that a person has a right, founded in the autonomy and sanctity of the person, to control the decisions relating to the rendering of his or her own medical care. In order that the rights of persons may be respected even after such persons lack the capacity to make health care decisions for themselves, and to encourage communication between patients and their attending physicians or APRNs, the general court declares that the laws of this state shall recognize the right of a competent person to make a written directive:
(a) Delegating to an agent the authority to make health care decisions on the person's behalf, in the event such person is unable to make those decisions for himself or herself, either due to permanent or temporary lack of capacity to make health care decisions;
(b) Instructing his or her attending physician or APRN to provide, withhold, or withdraw life-sustaining treatment, in the event such person is near death or is permanently unconscious.
II. All persons have a right to make health care decisions, including the right to refuse cardiopulmonary resuscitation. It is the purpose of the "Do Not Resuscitate'' provisions of this chapter to ensure that the right of a person to self-determination relating to cardiopulmonary resuscitation is protected, and to give direction to emergency services personnel and other health care providers in regard to the performance of cardiopulmonary resuscitation.
III. While all persons have a right to make a written directive, not all take advantage of that right, and it is the purpose of the surrogacy provisions of this chapter to ensure that health care decisions can be made in a timely manner by a person's next of kin or loved one without involving court action. This chapter specifies a process to establish a surrogate decision-maker when there is no valid advance directive or a guardian, as defined in RSA 464-A, to make health care decisions.
Cite as RSA 137-J:1

History. Amended by 2014, 239: 1, eff. 1/1/2015.

Note:

2006, 302:2, eff. Jan. 1, 2007. 2009, 54:4, eff. July 21, 2009.

§ 137-J:13. Use of Statutory Forms

I. Every person wishing to execute an advance directive shall be provided with a disclosure statement substantially in the form set forth in RSA 137-J:19 prior to execution. The principal shall be required to sign a statement acknowledging that he or she has received the disclosure statement and has read and understands its contents.
II. An advance directive executed on or after the effective date of this chapter shall be substantially in the form set forth in RSA 137-J:20.
III. [Repealed by 2013 amendment.]
Cite as RSA 137-J:13

History. Amended by 2013, 224: 3, eff. 1/1/2014.

Note:

2006, 302:2, eff. Jan. 1, 2007.

§ 137-J:14. Execution and Witnesses

I. The advance directive shall be signed by the principal in the presence of either of the following:
(a) Two or more subscribing witnesses, neither of whom shall, at the time of execution, be the agent, the principal's spouse or heir at law, or a person entitled to any part of the estate of the principal upon death of the principal under a will, trust, or other testamentary instrument or deed in existence or by operation of law, or attending physician or APRN, or person acting under the direction or control of the attending physician or APRN. No more than one such witness may be the principal's health or residential care provider or such provider's employee. The witnesses shall affirm that the principal appeared to be of sound mind and free from duress at the time the advance directive was signed and that the principal affirmed that he or she was aware of the nature of the document and signed it freely and voluntarily; or
(b) A notary public or justice of the peace, who shall acknowledge the principal's signature pursuant to the provisions of RSA 456 or RSA 456-A.
II. If the principal is physically unable to sign, the advance directive may be signed by the principal's name written by some other person in the principal's presence and at the principal's express direction.
III. A principal's decision to exclude or strike references to APRNs and the powers granted to APRNs in his or her advance directive shall be honored.
Cite as RSA 137-J:14

Note:

2006, 302:2, eff. Jan. 1, 2007. 2009, 54:4, eff. July 21, 2009.

§ 137-J:15. Revocation

I. An advance directive or surrogacy consistent with the provisions of this chapter shall be revoked:
(a) By written revocation delivered to the agent or surrogate or to a health care provider or residential care provider expressing the principal's intent to revoke, signed and dated by the principal; by oral revocation in the presence of 2 or more witnesses, none of whom shall be the principal's spouse or heir at law; or by any other act evidencing a specific intent to revoke the power, such as by burning, tearing, or obliterating the same or causing the same to be done by some other person at the principal's direction and in the principal's presence;
(b) By execution by the principal of a subsequent advance directive; or
(c) By the filing of an action for divorce, legal separation, annulment or protective order, where both the agent and the principal are parties to such action, except when there is an alternate agent designated, in which case the designation of the primary agent shall be revoked and the alternate designation shall become effective. Re-execution or written re-affirmation of the advance directive following a filing of an action for divorce, legal separation, annulment, or protective order shall make effective the original designation of the primary agent under the advance directive.
II. A principal's health or residential care provider who is informed of or provided with a revocation of an advance directive or surrogacy shall immediately record the revocation, and the time and date when he or she received the revocation, in the principal's medical record and notify the agent, the attending physician or APRN, and staff responsible for the principal's care of the revocation. An agent or surrogate who becomes aware of such revocation shall inform the principal's health or residential care provider of such revocation. shall become effective upon communication to the attending physician or APRN.
Cite as RSA 137-J:15

History. Amended by 2017, 178: 2, eff. 1/1/2018.

Amended by 2014, 239: 11, eff. 1/1/2015.

Note:

2006, 302:2, eff. Jan. 1, 2007. 2009, 54:4, eff. July 21, 2009.

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