Surrogate Health Care Decision Making and New Hampshire Advance Directive for Health Care

Attorney Alyssa Graham

February 2015

By February, most New Year's resolutions have been long discarded. Many start the year with notions of exercising more or eating better. While such ambitions are laudable, there is another aspect to healthy living that should not be overlooked: ensuring that someone can make health care decisions for you if you are unable to do so. The best way to achieve that is to execute a New Hampshire Advance Directive for Health Care, which allows you to designate an agent to make health care decisions for you. It also allows you to give your agent guidance on the decisions you want them to make.

While almost all of our clients have executed a New Hampshire Advance Directive, many people have not executed this document. Previously, if an individual did not execute an Advance Directive and became incapacitated the individual's family was left to obtain a guardianship of the incapacitated adult before health care decisions could be made. However, this past year, the New Hampshire legislature enacted legislation designed to make it easier for loved ones to make health care decisions for an individual who is incapacitated, even without an Advance Directive.

Effective on January 1, 2015, New Hampshire established surrogates for health care decision making. Now, if someone is incapacitated and that person does not have an Advance Directive for Health Care or a legal guardian, a physician or advance practice registered nurse may designate a surrogate to make health care decisions for that individual. The statute provides an order of priority as to who will be named as a health care surrogate, as follows: (1st) a spouse, (2nd) adult children, (3rd) parents; (4th) siblings; (5th) adult grandchildren; (6th) aunts, uncles, nieces or nephews; (7th) close friends (defined under the statute); (8th) agents under a financial power or attorney or conservators; and (9th) guardians of the patient's estate.

If there are two or more people within the same level, decisions by a majority of those available will control and if there is a question between multiple surrogates at the same level, those surrogates are responsible for making a reasonable effort to reach a consensus as to their decisions on behalf of the patient.

The designation of a surrogate lasts for 90 days. During that time, the surrogate may make health care decisions for a patient to the same extent as an agent under an Advance Directive. There is some ambiguity under the law as to whether a surrogate may act regarding a decision to withhold or withdraw life-sustaining treatment.

A surrogacy can also be revoked in the same way an Advance Directive can be revoked and will terminate if a patient expresses an objection to the continuation of the surrogacy. Additionally, a physician or APRN may revoke a surrogacy if the surrogate is unwilling or unable to act. Finally, if guardianship proceedings are initiated, then, while the proceedings are underway, the surrogate's authority to act is placed on hold.

This new law is certainly helpful for those who have not executed an Advance Directive. However, because of the potential ambiguity, the limitations of the surrogacy law, and the potential for conflict among those within the same level of priority, it is still preferable to execute a New Hampshire Advance Directive for Health Care.

Parents of young adults, eighteen and older, should encourage their adult children to sign an Advance Directive for Health Care. The Advance Directive for Health Care is designed to be easy for people to sign. You can download a blank Advance Directive for Health Care on our website on the Estate Planning page or here. The form can be printed, filled out and signed. When you sign the new Advance Directive, you will need either two independent witnesses or a notary public or justice of the peace to acknowledge your signature.

Regardless of whether you have let your other New Year's resolutions slide, make ensuring your loved ones have completed an Advance Directive for Health Care a priority. We would be happy to assist you if you have any questions about the Advance Directive for Health Care.