Update on Health Care Decision Making New Law Fills Gap

For almost 25 years, New Hampshire law has afforded competent adults the right to execute a Durable Power of Attorney for Health Care document (also known as a “DPOAHC” or an “Advance Directive”). For some reason, though, only one-third of New Hampshire’s citizens take advantage of this opportunity.

Through a Durable Power document, a person may designate an “Agent” to make health care decisions should he or she become incapacitated in the future (either temporarily or permanently) to make health care decisions for himself or herself. The DPOAHC is “activated” by a physician or Advanced Practice Registered Nurse only when and if that physician or nurse practitioner determines that the person has become incapacitated. Once the DPOAHC takes effect, the health care provider is required by law to confer with the Agent who has been hand selected by the patient.

Until the enactment this month of House Bill 1434, the only people who were legally authorized to make healthcare decisions for an incapacitated adult were: 1) An Agent appointed under a Durable Power of Attorney for Health Care document; or 2) a Guardian appointed by the New Hampshire Probate Court.

Most people were shocked to learn that they (as a spouse, adult child, or other close family member) otherwise had no authority under New Hampshire law to make health care decisions for an incapacitated loved one. Thus, for example, a wife would learn for the first time, after her husband’s serious car accident, that she had no legal authority to make health care decisions for her incapacitated husband. In the midst of her emotional turmoil over the car accident, she would be required to file for guardianship over her husband in the New Hampshire Probate Court, a time-consuming and costly procedure, in order to gain such legal authority. All of this could have been addressed if her husband had completed a DPOAHC.

It is surprising that only about one-third of New Hampshire residents have taken advantage of their right to designate an “Agent” — or multiple “Agents” — under a Durable Power of Attorney for Health Care document. Some may view the process as too time-consuming or expensive. However, the process is, in fact, neither–since individuals can themselves access a state-wide form for free for DPOAHC’s at http://www.healthynh.com/publications.html –and complete the form within minutes. Others may not want to contemplate the unsettling scenario of finding themselves — whether at age 25 or 85 — 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 condition. So folks often take the path of least resistance: doing nothing in terms of exercising their autonomy in selecting the person or persons whom they most trust to speak for them in such a situation.

This month Governor Hassan signed into law House Bill 1434, “relative to surrogate health care decision making by a family or friend.” The new law addresses the dilemma faced by the two-thirds of New Hampshire adults who for some reason or another have not signed DPOAHC’s. The purpose of the law is to provide a priority list of family members and friends who may legally authorize health care decisions for their loved ones in the event that the incapacitated patient has failed to execute a DPOACH. Thus, the new law authorizes the incapacitated person’s spouse, adult children, parents, siblings, etc. as default healthcare decision makers in the absence of an Advance Directive.

This is a common sense step to ease the burden on family members in a tremendously trying situation. It will provide relief to stressed and worried family members who otherwise would have been required to hire an attorney and march off to NH Probate Court for an expensive and emotionally trying hearing about guardianship. It is not a perfect solution. However, publicity about this new law may serve as a wake-up call to New Hampshire citizens that if they wish to hand pick their own decision maker for their health care decisions they should go to the trouble of executing a DPOAHC.

This article is an update from the April 14, 2014 New Hampshire Union Leader article, “ NH Legal Perspective — Health care decision making: Pending legislation fills gap“.