April 16th marks the second anniversary of National Healthcare Decisions Day, an event that highlights the importance of taking control of one's healthcare decision making by executing Advance Directives (such as a Living Will and/or a Durable Power of Attorney for Healthcare document). This year the event will be commemorated by a ceremony at the State House in Concord at which Governor Lynch will sign a Proclamation encouraging all New Hampshire citizens to execute Advance Directives. The First Lady of New Hampshire, Susan Lynch, who serves as Honorary Chair of this event and who is also a physician, will speak at the ceremony to address the importance of Advance Directives.
A Durable Power of Attorney for Healthcare document ("DPOAHC") may be executed by any competent person over the age of 18 (the "Principal"). Through a DPOAHC, a person may designate an "Agent" or "Agents" to make healthcare decisions in his or her behalf should he or she become incapacitated (either temporarily or permanently) at any time in the future. The DPOAHC lies dormant and is not "activated" until such time as the Principal is deemed by his or her treating physician or Advanced Registered Nurse Practitioner ("ARNP") to "lack capacity to make healthcare decisions." Once the treating physician or ARNP notes the incapacity in the Principal's medical record, the DPOAHC becomes effective and the Principal's healthcare providers are then required to seek consent from and confer with the Agent(s) about healthcare decisions affecting the Principal. The Agent(s) have the authority to make any and all healthcare decisions in the Principal's behalf that the Principal himself or herself could make. In doing so, the Agent(s) must act in the best interest of the Principal, and must carry out to the greatest extent possible the Principal's wishes and religious or moral beliefs that have been made known to the Agent. Under New Hampshire law, the Agent(s) have access to all medical information of the Principal so that they may make appropriate healthcare decisions for the Principal.
While Advance Directives have garnered publicity for their use in end-of-life circumstances (e.g. the Terry Schiavo or Karen Quinlan cases), they are equally important in other scenarios as well. Several states, including New Hampshire, do not have a "surrogate" decision making statute that would permit a spouse, or parents of adult children, to make medical decisions in behalf of their loved ones. For example, a perfectly healthy young college student may temporarily lose consciousness during an athletic event, requiring immediate treatment. If the student has not executed a DPOAHC, the parents may have no legal authority to make healthcare decisions on their adult child's behalf. Or one's spouse may land in the hospital from a car accident and may be temporarily unable to make healthcare decisions for himself. Without a DPOAHC in hand from her husband, the wife may have no legal authority to step in for her husband and consent to non-emergency medical treatment.
As a healthcare attorney who represents hospitals, nursing homes, physician groups, and others, I routinely field questions about thorny situations in which healthcare decisions must be made for an incapacitated adult who has no Advance Directives (this constitutes about three quarters of the citizens in our state, by the way). Many family members are shocked to learn that under New Hampshire law the only people who have legal authority to consent to the healthcare for an incapacitated adult are: 1) An Agent under a DPOAHC; or 2) a Guardian appointed by a New Hampshire Probate Court - not one's spouse, adult child, or other family member or friend. Since an incapacitated person cannot execute an Advance Directive, the families may find themselves in the unfortunate position of heading off to Probate Court to petition for guardianship over the person, a process that can take weeks, can cost thousands of dollars, and is emotionally trying at a time when family members would prefer to concentrate on the health of their loved one.
The simple act of planning ahead and executing a Durable Power of Attorney for Healthcare document (an act that literally takes only minutes) could save one's family a lot of heartache. As importantly, by personally and carefully selecting an Agent(s), a person can assure that his or her healthcare decision making will rest in the hands of someone he or she trusts to act in his or her best interest and in accordance with his or her wishes. In addition, the earlier in life that one executes an Advance Directive, the more time that person has to convey to his or her designated Agent(s) his or her wishes regarding certain healthcare decisions, including views about end-of-life procedures. These are complex issues and sometimes make for difficult discussions among loved ones, of course, but it is helpful to both the Principal and Agent(s) for these discussions to have taken place.
As with many legal documents, Advance Directives must be periodically reviewed and updated. Personal situations change, and New Hampshire law continues to evolve. For example, if the Advance Directive was executed in New Hampshire but the Principal finds that he or she is spending most of his or her time in Florida, it is important to take a look at Florida law to confirm that the New Hampshire DPOAHC will be honored in all important respects in Florida. Or, it may be that the Principal when younger executed a DPOAHC, naming her husband as Agent. If her husband is himself incapacitated at this point, the Principal may wish to amend the document to name an adult child or children as her Agent(s).
Additionally, New Hampshire law governing Advance Directives was recently amended, effective January 2007. Those who executed Advance Directives prior to the passage of the new law will want to review their documents to confirm that their wishes will continue to be carried out in the manner that they intended. As an example, if the Principal named more than one Agent in his or her DPOAHC, the new law clarifies the priority order in which those multiple Agents may act. Thus, if the Principal listed her four children as Agents, the children will be given authority in the priority order in which they are listed in the DPOAHC unless the Principal has specifically provided that all children may act jointly or severally (under prior law, it was assumed that the children could act jointly or severally). Also, the new law addresses the subject of ‘Do Not Resuscitate Orders' and allows for one to express specific wishes about that topic, something that the prior law did not specifically address.
Fortunately, executing (or amending) Advance Directives in New Hampshire has been greatly simplified by the New Hampshire Foundation for Healthy Communities, a not for profit organization that provides free forms and guidance on this subject of Advance Directives. You will find these free tools at http://www.healthynh.org/. New Hampshire hospitals, nursing homes, physicians, ARNPs, and others are very familiar with the Foundation's Advanced Directives form and it is readily accepted by New Hampshire healthcare providers and practitioners. Under the new New Hampshire law, it is no longer necessary to have Advance Directives signed by two witnesses and acknowledged by a notary or a justice of the peace; now, only one or the other (two witnesses or an acknowledgement) is required, with the stipulation that no more than one witness may be supplied by the healthcare institution in which the Principal resides. As part of National Healthcare Decisions Day, Sheehan Phinney Bass + Green's experienced healthcare and estate attorneys are offering a complimentary hotline to those who may have questions about Advance Directives. The hotline (1.800.654.4664) will be open from 8 a.m. to 8 p.m. on April 16, 2009.
Finally, it is important for those who have executed or amended Advance Directives to be sure to send copies to their treating physicians, ARNPs, local hospitals, attorneys, and of course to their Agent(s) appointed under the Advance Directives. One's most recent Advance Directive should indicate that it is intended to replace all prior Advance Directives that may have been executed. Most physicians, ARNPs, hospitals, and other healthcare entities accept copies of Advance Directives rather than requiring original signatures; however, it is not a bad idea to execute multiple originals of Advance Directives, to be sent or delivered to all pertinent healthcare providers or practitioners.
Act now to take control of your healthcare decision making, and encourage your family and friends to do the same!
Click here for the National Healthcare Decisions Day flyer.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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