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NH Legal Perspective -- Health care decision making: Pending legislation fills gap

April 19. 2014 8:12PM

Picture this scenario: You rush to the hospital after learning that your husband has suffered life-threatening injuries in a car accident. He survives the emergency treatment but is in a coma and will be hospitalized for the next several weeks as he undergoes several more medical procedures. The hospital staff informs you that because your husband is "incapacitated to make his own health care decisions," they will need to seek consent to treat him from another adult.

You, as his spouse of 20 years, are prepared to make those tough health care decisions for your husband. But you are shocked to learn that you do not have the legal authority to make health care decisions for him unless he has previously executed an "Advance Directive" (also known as a "Durable Power of Attorney for Health Care" document) appointing you as his "Agent" to make such decisions. You're told that under NH law, the only two people who can make health care decisions for an incapacitated adult are: 1) An Agent under a Durable Power of Attorney for Health Care document; or 2) a Guardian appointed by the N.H. Probate Court. You learn that it could take weeks (and cost more than $1,000) to petition the Probate Court for a temporary guardianship over your husband.

You kick yourself for not having planned better for this type of thing. You and your husband had learned about Advance Directives - and had talked about executing them before your trip to Europe - but that was months from now. Now here you are with your hands tied.

You are not alone. Surprisingly, only about one-third of New Hampshire residents have taken advantage of their right to designate another adult (an "Agent") under a Durable Power of Attorney for Health Care document even though such documents have been available in our state for years.

Some may view the process as too time consuming and expensive. It is neither, since they can download a free Durable Power form at and can complete the form within minutes. Others don't want to contemplate the unsettling scenario of finding themselves in a situation in which they have lost the ability to make their own health care decisions because of a temporary or permanent coma, dementia, Alzheimer's or other situation. So they take the path of least resistance: They do nothing about exercising their right to select the person whom they most trust to speak for them in such a situation.

Recently, the N.H. House of Representatives voted to follow the lead of 46 other states by creating a stop-gap measure to address the two-thirds of New Hampshire citizens without written Advance Directives. At the end of March, the House easily passed HB 1434, known as the "surrogate health care decision making" legislation, which is now on its way to the N.H. Senate for a vote.

The purpose of the bill is "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."

It recognizes that all people have a right to choose their own decision maker by executing a Durable Power of Attorney for Health Care, but it also acknowledges the simple fact that most folks have not done so and that they should not be required to go to court in order to make health care decisions for an incapacitated loved one.

HB 1434 creates a presumptive priority order of family members and/or loved ones (e.g. spouse, adult child, sibling, etc.) who are legally authorized to make health care decisions for another in the event that the incapacitated patient has not executed a Durable Power of Attorney for Health Care document. The surrogate decision maker's authority remains in effect only until the patient regains capacity, and in no event longer than 90 days.

Is this a perfect solution? Maybe not, but it certainly goes a long way to fill the vacuum left by those who have not yet executed a written Advance Directive. And maybe the new law (if passed) will kick some people into action to download that free form and select their own surrogate decision maker, rather than rely on the person who would be vested with decision-making authority under the new law.


NH Legal Perspective is a bi-weekly column sponsored by Sheehan Phinney Bass + Green PA. This column does not provide legal advice. We recommend that you consult an attorney for specific guidance on legal questions.

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