Medical power of attorney in New Hampshire: how to sign one
The short answer
In New Hampshire, a durable power of attorney for health care is part of one advance directive form. You sign it before two qualified witnesses or a notary or justice of the peace. If you name nobody, the law turns to your spouse, adult children, parents, siblings and other relatives, then a close friend.
The question under every medical power of attorney is a simple one. If you can't speak for yourself, who talks to the doctor?
New Hampshire answers it with a single "advance directive" form that has two parts. This page covers how to sign it, who can't be your witness, how the living will fits in, and what happens if you name nobody. It is part of our guides to estate planning by state. For the basics of the role, see what a medical power of attorney is.
What is it called in New Hampshire?
New Hampshire uses one document, called an "advance directive," with two parts (RSA 137-J:20):
- A durable power of attorney for health care, which names your agent.
- A living will, which writes down your wishes about life-sustaining treatment.
You can fill in either part or both. The document must be "substantially in the form" the statute sets out. Before you sign, you must be given the statutory disclosure statement, which explains what the document does (RSA 137-J:19). So this is not a place for a homemade letter. Use the state's form.
How do I sign it?
You sign in the presence of one of these (RSA 137-J:14):
- Two or more witnesses, or
- A notary public or a justice of the peace.
Witnesses affirm that you appeared to be of sound mind and free from duress.
Who can't be my witness?
New Hampshire's list is longer than most. None of these people can witness (RSA 137-J:14):
| Person | Can witness? |
|---|---|
| The person you name as your agent | No |
| Your spouse | No |
| Your heirs at law | No |
| Anyone who would inherit from you under a will, trust or deed, or by law | No |
| Your attending practitioner, or anyone working under their direction | No |
| Your health or residential care provider, or their employee | Only one of the two witnesses |
| A friend or neighbor who is none of the above | Yes |
That rules out most family. The easy path is a notary or a justice of the peace. If you use witnesses, pick two friends or neighbors who aren't related to you and aren't in your will.
What can my agent decide?
Your agent makes the health care decisions you would make if you could, within what your directive allows. Your agent is a fiduciary: legally required to act in your interest and follow what you wrote.
Day to day, that usually means talking with your doctors, reading your chart, and agreeing to or declining a test, a surgery or a new medicine in light of your wishes.
A financial power of attorney is a separate document with different signing rules. Our New Hampshire power of attorney guide covers that one.
If you signed an advance directive in another state, New Hampshire honors it if it was valid where you signed it (RSA 137-J:17).
Do I need the living will part too?
Many people fill in both. The power of attorney names a person. The living will writes down your wishes, so that person isn't guessing.
In New Hampshire, the living will is part of the same advance directive and is signed the same way: two qualified witnesses, or a notary or justice of the peace (RSA 137-J:2). One signing covers both.
Our post on health care power of attorney vs living will explains how the two work together, and treatment preferences helps you think through what to write.
Who decides if I haven't named anyone?
New Hampshire has a full default list. When you lack capacity and no health care agent is available, your attending practitioner may identify a surrogate, without going to court (RSA 137-J:35). The order is:
| Order | Surrogate |
|---|---|
| 1 | Spouse, civil union partner or common law spouse (unless a divorce, separation agreement or restraining order limits it) |
| 2 | An adult son or daughter |
| 3 | Either parent |
| 4 | An adult brother or sister |
| 5 | An adult grandchild |
| 6 | A grandparent |
| 7 | An adult aunt, uncle, niece or nephew |
| 8 | A close friend |
| 9 | Your agent under a financial power of attorney, or a conservator |
| 10 | The guardian of your estate |
A close friend can serve. To count, the friend gives the attending physician an affidavit saying they are a close friend, are willing and able to be involved in your care, and have kept regular contact. They must know your activities, your health, and your religious and moral beliefs, with facts showing it (RSA 137-J:2).
A few more rules (RSA 137-J:36, RSA 137-J:37):
- If several people share a level and disagree, the majority of those available decides.
- A surrogate can't be chosen over your express objection.
- Your attending practitioner can't serve, and neither can nonrelative employees of your provider.
- Surrogate authority lasts up to 180 days, unless you are actively dying. It ends sooner if you regain capacity or a guardian is appointed.
Notice where the close friend sits: eighth, after grandparents, aunts, uncles, nieces and nephews. Your financial agent ranks even lower. If the person who really knows your wishes is a friend, naming them in the advance directive moves them to the front.
Our page on who decides for you walks through this in plain steps. Our post on medical decisions without a power of attorney compares other states, and the 50-state guide to default decision-makers has the full picture.
Here is a typical case, a composite. Joyce is 74, widowed, and lives in Keene. Her niece lives in Arizona and calls on holidays. Her friend Ellen drives her to appointments and knows exactly what she would want. Joyce names Ellen as her health care agent and her niece as backup.
How do I choose my agent?
Once the signing is done, the practical questions matter most. Is the person willing? Can they get to the hospital in Lebanon or Manchester? Will they follow your wishes even when they'd choose differently?
A short checklist:
- They know what you want, because you've told them.
- They can stay calm in a hospital hallway and ask questions.
- They live close enough, or can travel when needed.
- You've named a backup in case they can't.
Our post on how to choose a medical power of attorney has more questions to ask.
Some people would like a professional standing by, first or behind a friend. A Kinly membership includes a medical power of attorney written for your state, and Trella Trust Company can be named in the role, first or as the backup to someone you choose.
Once your health papers are done, our New Hampshire probate guide covers what happens to your home and savings later.
Common questions
Does a medical power of attorney need to be notarized in New Hampshire?
No. You can sign before a notary or a justice of the peace, or before two qualified witnesses. Most people find a notary easier, because the witness rules exclude family and heirs.
Can a family member witness my New Hampshire advance directive?
No, if they are your spouse or would inherit from you. Your agent can't witness either. A notary or justice of the peace avoids the problem.
Who makes medical decisions in New Hampshire if there's no power of attorney?
Your attending practitioner identifies a surrogate in a set order: spouse, adult child, parent, sibling, adult grandchild, grandparent, aunt, uncle, niece or nephew, then a close friend. Surrogate authority lasts up to 180 days.
Can a close friend make medical decisions for me in New Hampshire?
Yes, even without being named, but only eighth in line and only by signing an affidavit for the physician. Naming the friend in your advance directive puts them first.
Is there an official New Hampshire form?
Yes. The advance directive must be substantially in the statutory form, and you must be given the disclosure statement before signing.
Sources
- RSA 137-J:2: Definitions (New Hampshire General Court)
- RSA 137-J:14: Execution of advance directive (New Hampshire General Court)
- RSA 137-J:17: Directives from other states (New Hampshire General Court)
- RSA 137-J:19: Disclosure statement (New Hampshire General Court)
- RSA 137-J:20: Form of advance directive (New Hampshire General Court)
- RSA 137-J:35: Surrogate decision-making (New Hampshire General Court)
- RSA 137-J:36: Surrogate decision-making, continued (New Hampshire General Court)
- RSA 137-J:37: Surrogate authority (New Hampshire General Court)
This page is general information, not legal or financial advice. Laws vary by state.