Living will requirements in New Hampshire

Which document is this, really

New Hampshire calls the paperwork you sign the Advance Directive, and it really is one document with two parts inside it. Part I is the Durable Power of Attorney for Health Care, which names the person who decides for you. Part II is the Living Will, which writes down your own wishes about life-sustaining treatment. Both parts share a single signing and a single set of witnesses, or a single notary, so there is one ceremony to get right, not two.

New Hampshire goes further than most states on the paperwork itself. Its statute prints a form, and a directive has to follow that form substantially. Before you can sign it, state law requires that you first be given a disclosure statement explaining, in plain terms, what the directive does and what it means to have one. The form’s own signature line then has you confirm, in writing, that you received, reviewed, and understood that disclosure statement.

This is exactly what Myend’s free Healthcare Directive prepares for New Hampshire: both parts, in New Hampshire’s order, ready for that single signing.

Who can make one

You must be 18 or older to sign a New Hampshire Advance Directive. The chapter defines the person making one, the principal, as someone 18 years of age or older. Beyond the age line, New Hampshire does not ask for a medical exam or a certificate of capacity. What matters at the moment you sign is that you understand what the Durable Power of Attorney for Health Care does, what the Living Will says on your behalf, and what happens to your own decisions once either part takes effect.

Signing it so it counts

New Hampshire’s Advance Directive has one signing for both parts. Before you reach the signature line, state law requires that you be handed a disclosure statement about what the directive does, and the form itself has you confirm you read it. From there, you sign in front of witnesses, or have your signature acknowledged instead, and either route makes the whole document, both parts together, valid.

1. 1You receive the disclosure statement

   Before you sign, New Hampshire law requires that you be given a written disclosure statement explaining what the directive does. The signature line itself has you confirm, in writing, that you received, reviewed, and understood it.

2. 2You sign, in front of two witnesses or a notary

   Sign in the presence of two witnesses, or skip the witnesses and have your signature acknowledged instead by a notary public or a justice of the peace. Either route, on its own, makes the directive valid.

3. 3If you use witnesses

   Your two witnesses watch you sign and are attesting that you appeared of sound mind, free of duress, and signed freely and voluntarily. If you cannot sign yourself, someone else may sign your name for you, in your physical presence and at your express direction.

If you choose the notary or justice of the peace route instead, none of the witness rules apply, and the signature lines above are replaced by an acknowledgment.

Naming your agent

Part I of your Advance Directive, the Durable Power of Attorney for Health Care, is where you name your agent, the adult you are delegating authority to make health care decisions for you. New Hampshire’s rule on who cannot serve is narrow, and it is written as a bar on acting, not a bar on being named: your attending practitioner, or anyone acting under that practitioner’s direct authority, cannot exercise an agent’s authority while holding that role, and neither can a nonrelative of yours who is an employee of your health care provider or residential care provider. A relative of yours who happens to work for your provider is not reached by this rule.

New Hampshire also recognizes a related but separate role, the surrogate decision-maker: an adult who steps in to decide for you when you have not named an agent at all. A surrogate’s authority runs for no more than 180 days unless you are actively dying, which is one more reason to name your own agent rather than leaving the choice to that default.

When it takes effect

New Hampshire’s two parts do not switch on at the same moment. Your agent’s authority under the Durable Power of Attorney for Health Care starts only once your attending practitioner certifies, in your medical record, that you lack the capacity to make health care decisions, and it ends the moment that practitioner certifies your capacity has returned.

The Living Will asks for more. Before your written wishes about life-sustaining treatment can be carried out, two attending physicians, or one physician plus another attending practitioner who is not under that physician’s supervision, have to certify in your medical record both that you have lost capacity and that you are permanently unconscious, or living with an advanced, incurable, and progressive condition for which treatment has become excessively burdensome or is no longer effective.

If you are pregnant

New Hampshire’s pregnancy rule limits your agent or surrogate, not your own written wishes. Your Living Will is not automatically suspended by pregnancy. What is limited is authority to act on your behalf: your agent or surrogate cannot consent to withholding or withdrawing life-sustaining treatment from you while you are pregnant unless it is certified, to a reasonable degree of medical certainty and in your medical record, that continuing the treatment will not maintain you in a way that permits the fetus to keep developing toward a live birth, or that continuing it will be physically harmful to you, or that it will prolong severe pain that medication cannot relieve.

Changing or cancelling it

You can revoke your New Hampshire Advance Directive several ways. A written revocation, signed and dated, delivered to your agent, your surrogate, or a health or residential care provider works. So does an oral revocation made in the presence of two or more witnesses, so long as none of them is a person barred from witnessing under New Hampshire’s own disqualification rule. Any other act that clearly shows you mean to revoke it, such as burning, tearing, or obliterating the document yourself, or having someone do that at your direction and in your physical presence, also works, as does simply signing a later Advance Directive.

Filing for divorce, legal separation, annulment, or a protective order revokes your agent’s authority automatically, but only where you and your agent are both parties to that filing, and a named alternate agent takes over in that case. Once a provider is told about a revocation, New Hampshire requires them to record the date and time and to notify your agent, your attending practitioner, and the care staff. A revocation becomes effective once it is communicated to your attending practitioner.

Making sure it is found

New Hampshire keeps no registry for the Advance Directive itself; chapter 137-J creates none. The only registry the statutes provide for sits in a separate chapter, holds POLST forms, the clinician-signed medical orders described below, and takes them only where the patient has asked to opt in. Your Advance Directive is not a document it accepts. So the way to make sure yours is found is the one that works everywhere: give a signed copy to your agent, to your regular physician, and to the hospital or facility you are most likely to use, and keep the signed original where your family already knows to look.

If you signed your directive, a DNR order, or a POLST form in another state, New Hampshire’s reciprocity rule is broad. Any of those documents, along with a living will or similar instrument, is honored here if it was valid under the laws of the state where you signed it.

This is not a POLST

New Hampshire’s separate program for people who are already seriously ill is generally called New Hampshire POLST, run under its own chapter. A POLST form is a set of medical orders a clinician signs together with a patient facing serious illness, meant to travel with that patient between home, ambulance, and hospital, and New Hampshire’s statutes provide for a statewide registry built only for those forms. Your Advance Directive is a different kind of document. You complete it in advance, it needs no clinician’s signature, and it is not the kind of document that registry accepts. Myend prepares the Advance Directive. It does not, and cannot, produce a POLST, because that has to come from the clinician treating you.

What is different about New Hampshire

New Hampshire will not let you sign until you have first been handed a state-written explanation of what your directive does, and the signature line makes you say so.

New Hampshire will not let you sign an advance directive cold. Before you can execute one, the law requires that you first be given a disclosure statement, a document the statute prints its own form for, describing what the Advance Directive does and what it means to complete one. The signature block on New Hampshire’s form then has you confirm, in writing, that you received it, reviewed it, and understood it. Skipping that step is not a formality; it is part of what makes the directive itself substantially compliant with the statute.

New Hampshire also offers a third way to make the directive valid that most states do not. Alongside two witnesses or a notary public, a justice of the peace can acknowledge your signature instead. Its reciprocity rule reaches further than the usual one-line clause, too, naming DNR orders and POLST forms by name alongside the directive documents, and testing all of them against the law of wherever you signed, not against New Hampshire’s own rules.

The two parts of the form also switch on differently. Your agent’s authority needs only one certifier, your attending practitioner. Your Living Will needs two. And if you have no attending practitioner at all for religious or moral reasons, New Hampshire lets a person named in your directive certify your incapacity instead, in writing and acknowledged before a notary or justice of the peace, provided that person is not your agent and is not someone barred from being your agent.

Common questions

Sources and review