New Hampshire Broadens Advance Directive Law

January 26th, 2015 by beasleyferber

Like all states, New Hampshire has a law which allows someone to sign an advance medical directive.  Under such a directive, you can appoint an agent who can make medical decisions for you, including (if you wish) end-of-life decisions, if you are unable to do so yourself.   With our firm, preparation of an Advance Directive is standard operating procedure when we do an estate plan.  Advance Directive forms are also available through all hospitals, doctors’ offices, and many senior centers.  Although everyone has the right to sign an Advance Directive, and having one prepared is easy and inexpensive, it is a sad fact that most people ignore this important issue.  In the case of someone who becomes incompetent and has not signed an Advance Directive, the family has had to petition the Probate Court for legal guardianship.

Effective January 1, 2015, New Hampshire amended the Advance Directive law to remedy this situation.  (For those of you who are interested, the law is at RSA 137-J:2.  The law introduces the concept of a “Surrogate Decisio-Maker.”  A Surrogate is defined as “an adult individual who has health care decision-making capacity, is available upon reasonable inquiry, is willing to make health care decisions on behalf of a patient who lacks health care decision-making capacity, and is identified by the attending physician or APRN in accordance with the provisions of this chapter as the person who is to make those decisions in accordance with the provisions of this chapter.”  For purposes of the new law, a Surrogte needs to be a “Close Friend.”  A Close Friend is defined as “any person 21 years of age or older who presents an affidavit to the attending physician stating that he or she is a close friend of the patient, is willing and able to become involved in the patient’s health care, and has maintained such regular contact with the patient as to be familiar with the patient’s activities, health, and religious and moral beliefs. The affidavit shall also state facts and circumstances that demonstrate such familiarity with the patient.”

The net result of all this is that the new law is a way to avoid some guardianship proceedings.  It is yet to be seen whether, as  a practical matter, doctors and other health-care providers will respond to the law.  After all, old habits die hard.  Hopefully, the medical profession will embrace this law, making it easier and much less costly to obtain consent to needed medical treatment.

239:4 New Paragraph; Directives for Medical Decisions; Definition Added. Amend RSA 137-J:2 by inserting after paragraph XXII the following new paragraph:

XXII-a. “Surrogate decision-maker” or “surrogate” means .

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