Guides · State guides · New Hampshire
Advance Directive in New Hampshire: Health Care Power of Attorney, Living Will and Witnesses
New Hampshire's advance directive combines a durable power of attorney for health care and a living will on one statutory form. It needs two qualified witnesses or a notary or justice of the peace. Here is how it works, from RSA 137-J.
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What to know
- A New Hampshire advance directive must be signed in front of two qualified witnesses, or a notary public or justice of the peace (RSA 137-J:14).
- A witness can't be the agent, your parent's spouse or heir, anyone who'd inherit from them, or their attending practitioner.
- It must be substantially in the statutory form, and your parent must get the statutory disclosure statement before signing (RSA 137-J:13).
- Without an agent, New Hampshire law sets an order of surrogates, starting with the spouse, then an adult child; a surrogate's authority lasts up to 180 days unless your parent is actively dying (RSA 137-J:35, 137-J:37).
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A New Hampshire advance directive is one statutory form combining a durable power of attorney for health care and a living will, signed before two qualified witnesses or a notary or justice of the peace (RSA 137-J:14). The statute defines it as "a document allowing a person to give directions and guidance about future medical care and to designate another person to make medical decisions if the principal should lose the capacity to make health care decisions." Under RSA 137-J:2, it includes "a durable power of attorney for health care and a living will," and your parent can complete either part or both. The statutory form says it "MUST BE SIGNED BY TWO WITNESSES OR A NOTARY PUBLIC OR A JUSTICE OF THE PEACE."
What documents does New Hampshire use?
New Hampshire uses two documents, a durable power of attorney for health care and a living will, and your parent can complete them together on one statutory form.
| Document | What it does | Statute |
|---|---|---|
| Durable power of attorney for health care | Names an agent to make health care decisions when your parent lacks capacity | RSA 137-J:2, 137-J:5 |
| Living will | Gives written guidance about life-sustaining treatment for an agent, surrogate or practitioners | RSA 137-J:2, 137-J:20 |
| Combined advance directive form | Both parts, with the disclosure statement, signed once | RSA 137-J:19, 137-J:20 |
If the two parts conflict, "the durable power of attorney for health care shall control" (RSA 137-J:21). A financial power of attorney is separate and doesn't cover health care; see our New Hampshire power of attorney guide. For the general picture, see power of attorney vs. advance directive.
How do you sign a New Hampshire advance directive?
Your parent signs it in the presence of either two or more witnesses, or "A notary public or justice of the peace, who shall acknowledge the principal's signature." It's one or the other; the statute doesn't require both. If your parent is physically unable to sign, someone can sign their name "in the principal's physical presence and at the principal's express direction."
Under RSA 137-J:14, none of these people can be a witness:
- the agent or surrogate;
- your parent's spouse or heir at law;
- anyone entitled to part of your parent's estate under a will, trust, deed or by law;
- the attending practitioner, or someone acting under their direction or control.
No more than one witness can be your parent's health or residential care provider or that provider's employee. The witnesses affirm that your parent "appeared to be of sound mind and free from duress." Because heirs are excluded, adult children and other relatives who'd inherit can't witness; the notary or justice of the peace route avoids that question.
Who can't be the health care agent?
Your parent's attending practitioner and nonrelative employees of their care providers can't serve. Under RSA 137-J:8, a person can't act as agent or surrogate while serving as:
- your parent's attending practitioner, or a person acting under the attending practitioner's direct authority;
- a nonrelative who is an employee of your parent's health care provider or residential care provider.
The statute defines an agent as an adult, and the disclosure statement tells your parent that agents "cannot be anyone who is caring for you in a health care or residential care setting." If your parent names more than one agent, they serve in the order listed, unless the document says they act jointly.
When does the agent start making decisions?
Only when your parent lacks capacity. Under RSA 137-J:5, the agent's authority is in effect "only when the principal lacks capacity to make health care decisions, as certified in the principal's medical record by the principal's attending practitioner." The attending practitioner can be a physician, physician associate or APRN. If your parent regains capacity, the authority ends and decisions return to them.
The agent can then make "any and all health care decisions on the principal's behalf that the principal could make," following your parent's known wishes and beliefs, or their best interests if those are unknown. The agent can see medical records. Some decisions are off limits, such as voluntary admission to a state institution or sterilization. Unless the document says otherwise, treatment the agent consents to can be given "even over the principal's objection."
Where do you get a New Hampshire form?
The form is printed in the statute. Under RSA 137-J:13, an advance directive "shall be substantially in the form set forth in RSA 137-J:20," and your parent must be given the disclosure statement in RSA 137-J:19 before signing. Both are on the General Court's RSA 137-J page.
The disclosure statement tells your parent: "You do not need a lawyer to complete this form, but feel free to talk to a lawyer if you have questions about it." It also says the advance directive "is not a medical order." In the living will part, your parent initials one of two choices: all attempts at life-sustaining treatment, or none they'd consider excessively burdensome or without a reasonable hope of benefit.
What happens if your parent has no agent?
The attending practitioner can identify a family member or other surrogate from a priority list in the statute. Under RSA 137-J:35, when no agent is available, a surrogate can decide "without court order or judicial involvement," taken in this order:
- the spouse, civil union partner or common law spouse, unless a divorce proceeding, separation agreement or restraining order limits the relationship;
- an adult son or daughter;
- either parent;
- an adult brother or sister;
- an adult grandchild;
- a grandparent;
- an adult aunt, uncle, niece or nephew;
- a close friend, who signs an affidavit;
- the agent under a financial power of attorney, or a conservator;
- the guardian of the estate.
If people at the same level disagree, "a majority of the available persons in that category shall control," unless someone starts guardianship proceedings. A surrogate can't be identified over your parent's express objection, and a surrogate's authority ends after 180 days "unless the patient is determined to be actively dying."
How do you revoke a New Hampshire advance directive?
Under RSA 137-J:15, your parent can revoke it by a signed, dated written revocation delivered to the agent or a provider; orally in front of two witnesses who'd qualify to witness the directive; by destroying it; or by signing a new advance directive. Revocation "shall become effective upon communication to the attending practitioner."
Divorce matters. Filing for divorce, legal separation, annulment or a protective order, where the agent and your parent are both parties, revokes the agent's designation; if an alternate agent is named, the alternate takes over.
What about POLST and DNR orders?
They're medical orders signed by a practitioner, separate from the advance directive, which "is not a medical order." A POLST is "a form that contains a set of emergency medical orders signed by an attending practitioner." An attending practitioner can issue a do not resuscitate order with the consent of your parent or their agent or surrogate. Under RSA 137-J:26, "Portable DNR and POLST (that indicates Do Not Resuscitate) forms are transferable, valid medical orders throughout this state."
Frequently asked questions
Does an advance directive need to be notarized in New Hampshire?
Not necessarily. Under RSA 137-J:14, your parent signs either in front of two qualified witnesses or before a notary public or justice of the peace. Either way is valid; the statute doesn't require both. The notary route can help when your parent's relatives can't serve as witnesses because they're heirs.
Can a family member witness an advance directive in New Hampshire?
Not if they're your parent's spouse or heir. RSA 137-J:14 bars the agent, your parent's spouse or heir at law, and anyone entitled to part of their estate, which can rule out adult children. The attending practitioner and people under their direction can't witness either. A notary public or justice of the peace can be used instead of witnesses.
Where can I get a New Hampshire advance directive form?
The statutory form and the required disclosure statement are printed in RSA 137-J:19 and 137-J:20 on the General Court's website. An advance directive must be substantially in that form, and your parent must get the disclosure statement before signing. The disclosure says a lawyer isn't needed, though your parent can consult one.
Who makes medical decisions in New Hampshire if there's no advance directive?
A surrogate identified by the attending practitioner under RSA 137-J:35. The order runs from the spouse to an adult child, a parent, an adult sibling, an adult grandchild, a grandparent, an adult aunt, uncle, niece or nephew, a close friend, then a financial agent or conservator. A surrogate's authority lasts up to 180 days unless your parent is actively dying.
Is an advance directive from another state valid in New Hampshire?
Yes, if it was valid where it was signed. Under RSA 137-J:17, a durable power of attorney for health care, living will, DNR, POLST or similar document executed in another state and valid there is as effective in New Hampshire as if it had been signed under New Hampshire law, as long as it isn't used to violate RSA 137-J.
Can my parent change their mind after signing?
Yes. Your parent can revoke an advance directive with a signed, dated writing delivered to the agent or a provider, orally in front of two qualified witnesses, by destroying it, or by signing a new one. The revocation takes effect when it's communicated to the attending practitioner.
Getting started
An advance directive only helps if it's signed while your parent can sign it, before two qualified witnesses or a notary or justice of the peace, and if a copy reaches the doctor. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- RSA 137-J, Written Directives for Medical Decision Making: definitions (137-J:2), the agent's authority (137-J:5, 137-J:6), who can't serve (137-J:8), the form and disclosure (137-J:13, 137-J:19, 137-J:20), signing and witnesses (137-J:14), revocation (137-J:15), out-of-state documents (137-J:17), DNR and POLST (137-J:26) and surrogates (137-J:35 to 137-J:37); published by the New Hampshire General Court.
- RSA 564-E, Uniform Power of Attorney Act: the financial power of attorney, which excludes health care decisions (564-E:103).
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