New Hampshire Healthcare Power of Attorney Requirements
New Hampshire holds both required signing witnesses, not just one of them, to the same strict disqualification list: neither can be your named agent or surrogate, your spouse or heir at law, someone who could inherit from your estate, your attending practitioner, or a person acting under that practitioner's direction, and at most one of the two may double as an employee of your health or residential care provider.
Introduction
New Hampshire holds both required signing witnesses, not just one of them, to the same strict disqualification list: neither can be your named agent or surrogate, your spouse or heir at law, someone who could inherit from your estate, your attending practitioner, or a person acting under that practitioner's direction, and at most one of the two may double as an employee of your health or residential care provider. This document, the Durable Power of Attorney for Health Care, lets you designate a trusted agent to make health care decisions on your behalf whenever you can't make them yourself. In New Hampshire, it forms one part of a combined form called an Advance Directive, created and governed by RSA Chapter 137-J, Written Directives for Medical Decision Making for Adults Without Capacity to Make Health Care Decisions. The other part of the same form is a Living Will, which states your own wishes about end-of-life care. This is not the same instrument as a financial power of attorney; its scope is limited to health care decisions, and it says nothing about your money, property, or bills. Signing does not work the way people often assume, since it does not hand your agent immediate authority. Your agent can only start making decisions once your attending practitioner certifies, in your medical record, that you lack the capacity to make your own health care decisions. Up until then, you continue making your own health care decisions. New Hampshire gives you two ways to make the document legally valid: sign it in front of two qualifying witnesses, or sign it before a notary public or justice of the peace. Before you sign, state law requires that you first be given a disclosure statement explaining the document in plain language. New Hampshire does not run a state registry for Advance Directives, so you simply keep the original and give copies to your agent, your attending practitioner, and any alternate agents.
Key Things to Know
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New Hampshire holds both required signing witnesses, not just one of them, to the same strict disqualification list, a stricter standard than many states use. This document, the agent-designation half of the state's Advance Directive, lets you name a trusted adult as your agent to make health care decisions once you're no longer able to decide for yourself.
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Your agent's authority does not start the moment you sign. It begins only after your attending practitioner certifies, in your medical record, that you lack the capacity to make your own health care decisions (RSA 137-J:5, II).
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Unless you limit it in the document, your agent can make any and all health care decisions for you that you could make yourself, including consenting to or refusing treatment.
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Your agent cannot be your attending practitioner, or a nonrelative employee of your health care provider or residential care provider (RSA 137-J:8).
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You need two or more qualifying witnesses, or a notary public or justice of the peace instead. New Hampshire does not require both; either option alone is enough (RSA 137-J:14).
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Before you sign, New Hampshire law requires that you first be given a disclosure statement explaining the document in plain language (RSA 137-J:13, 137-J:19).
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You can revoke the document at any time by written notice, oral revocation in front of two qualifying witnesses, any other act showing clear intent to revoke, or by signing a later advance directive (RSA 137-J:15).
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If your agent is your spouse and you later file for divorce, legal separation, annulment, or a protective order naming that spouse, their agent authority ends automatically. If you named an alternate agent, that person's authority then begins; otherwise you will need to re-execute the document to name a new agent.
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New Hampshire has no state government registry for Advance Directives. Keep the signed original and give copies to your agent, your attending practitioner, and any alternate agents.
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This is a different document from New Hampshire's Durable Power of Attorney under the Uniform Power of Attorney Act (RSA 564-E), which covers property and financial decisions, not health care, and which by law does not apply to health care decisions at all.
Key decisions before you file
Before you file a Healthcare Power of Attorney in New Hampshire, a few decisions shape the document: which option to choose and what each one means. The Healthcare Power of Attorney guide walks through them.
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New Hampshire Requirements for Healthcare Power of Attorney
The Durable Power of Attorney for Health Care must comply with New Hampshire RSA Chapter 137-J, Written Directives for Medical Decision Making for Adults Without Capacity to Make Health Care Decisions, which establishes the legal framework for designating a health care agent as one component of a combined Advance Directive (the other component is a Living Will).
The principal designates a health care agent, with full name, address, and phone number, using the statutory New Hampshire Advance Directive Form at RSA 137-J:20, Part I. The form also lets the principal name an alternate agent who serves if the primary agent is not able, willing, or available; naming an alternate is optional, not mandatory.
Subject to any express limitations the principal states in the document, the agent has authority to make any and all health care decisions on the principal's behalf that the principal could make (RSA 137-J:5, I).
The agent's authority to make health care decisions is in effect only when the principal lacks capacity to make health care decisions, as certified in the principal's medical record by the principal's attending practitioner (RSA 137-J:5, II). This is not a drafting choice the principal makes in the document; it is a mandatory, automatic condition under the statute. When the principal regains capacity, also certified by the attending practitioner, the agent's authority ends automatically and reverts to the principal.
Capacity to make health care decisions is defined at RSA 137-J:2, VI, and incapacity is determined and certified by the principal's single attending practitioner (physician, physician assistant, or advanced practice registered nurse), in writing, in the principal's medical record (RSA 137-J:5, II). New Hampshire does not require two physicians for this everyday capacity determination; a two-physician (or physician-plus-practitioner) certification standard applies only to the separate, stricter Living Will findings of being actively dying or permanently unconscious (RSA 137-J:2, I and XVII), which are a different trigger for a different part of the Advance Directive.
The principal signs in the presence of two or more subscribing witnesses, or alternatively signs with the signature acknowledged before a notary public or justice of the peace (no witnesses needed if that option is chosen) (RSA 137-J:14, I). If witnesses are used, neither one may be the agent or surrogate; the principal's spouse or heir at law; a person entitled to any part of the principal's estate under a will, trust, other testamentary instrument, or deed, or by operation of law; the attending practitioner; or a person acting under that practitioner's direction or control. No more than one of the witnesses may be the principal's health or residential care provider or that provider's employee.
Acknowledgment before a notary public or justice of the peace is an ALTERNATIVE to the two-witness signing, not an additional requirement layered on top of it (RSA 137-J:14, I(a) and (b)).
Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the document is in effect.
The agent's general authority to make any and all health care decisions (RSA 137-J:5, I) includes decisions about life-sustaining treatment, a term defined at RSA 137-J:2, XVI to include medically administered nutrition and hydration, mechanical respiration, kidney dialysis, and similar interventions, unless the principal limits that authority in the document.
New Hampshire law does not let a health care agent consent, on the principal's behalf, to the principal's voluntary admission to a state institution, or to psychosurgery or electro-convulsive shock therapy (RSA 137-J:5, V(a) and V(d)). This is a mandatory statutory exclusion from the agent's authority, not something the principal affirmatively grants or withholds in the document.
Under New Hampshire's Uniform Anatomical Gift Act, a health care agent authorized under RSA 137-J is expressly included in the Act's own definition of 'agent' (RSA 291-A:2, II(a)), and such an agent may make an anatomical gift on the principal's behalf during the principal's life unless the Durable Power of Attorney for Health Care or another record prohibits it (RSA 291-A:4, II).
The principal may revoke the advance directive by written revocation delivered to the agent, surrogate, or a health or residential care provider, signed and dated; by oral revocation in the presence of two or more witnesses who are not themselves disqualified from acting as a witness; by any other act evidencing a specific intent to revoke, such as burning, tearing, or obliterating the document; or by executing a subsequent advance directive (RSA 137-J:15, I(a), (b)). Filing an action for divorce, legal separation, annulment, or a protective order in which both the agent and the principal are parties revokes the primary agent's designation specifically, with an alternate agent designation (if any) becoming effective instead (RSA 137-J:15, I(c)). A provider informed of a revocation must immediately record it, with the date and time received, in the principal's medical record and notify the agent, the attending practitioner, and other current care staff (RSA 137-J:15, II).
A person acting as an agent or surrogate under an advance directive is not subject to criminal or civil liability for a health care decision made in good faith and consistent with the chapter and the advance directive's terms (RSA 137-J:12, I). Health and residential care providers acting in good faith on the directive, or declining to follow a directive they believe in good faith exceeds the agent's or surrogate's authority, are likewise protected from liability (RSA 137-J:12, II). 'Good faith' means honesty in fact in the transaction (RSA 137-J:12, IV).
If the principal names more than one agent, the named agents have authority in the order their names are listed on the document, unless the document expressly provides for joint agency (RSA 137-J:18). A separate provision addresses disagreement among co-equal surrogate decision-makers (relevant only when no agent has been named or is available): surrogates in the same priority category must make reasonable efforts to reach consensus, and if they disagree, a majority of the reasonably available surrogates in that category controls, with guardianship proceedings available to a dissenting minority (RSA 137-J:36, I).
New Hampshire has its own reciprocity statute directly on point: a durable power of attorney for health care, living will, DNR, or POLST validly executed in another state, and valid under that state's laws, is given the same effect in New Hampshire as if executed under New Hampshire law (RSA 137-J:17).
An agent or surrogate has no authority to consent to withholding life-sustaining treatment from a pregnant principal unless, to a reasonable degree of medical certainty, the attending practitioner and an obstetrician who has examined the principal certify in the principal's medical record that the treatment will not permit continuing development and live birth of the fetus, or will be physically harmful to the principal, or will prolong severe pain that cannot be alleviated by medication (RSA 137-J:5, V(c); echoed at RSA 137-J:10, II(a)).
Every person wishing to execute an advance directive must first be given a disclosure statement substantially in the form set out at RSA 137-J:19, before signing (RSA 137-J:13, I). The disclosure statement is plain-language text explaining who may serve as agent, when the agent's authority begins, what decisions the agent can and cannot make, and the requirement of two witnesses or a notary or justice of the peace.
Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Durable Power of Attorney for Health Care.
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Check my Healthcare Power of AttorneyFrequently Asked Questions
A Durable Power of Attorney for Health Care in New Hampshire is the health care agent-designation part of the state's Advance Directive, created under RSA Chapter 137-J. It lets you name a trusted adult, your agent, to make health care decisions for you if you ever become unable to make them yourself. It covers only health care decisions and takes effect only after your attending practitioner certifies, in your medical record, that you lack the capacity to decide for yourself.
New Hampshire's Durable Power of Attorney for Health Care, under RSA 137-J, covers only health care decisions. The state's general Durable Power of Attorney, under the Uniform Power of Attorney Act (RSA 564-E), covers property and financial matters instead, and by law does not apply to health care decisions at all. The two also start differently: the financial power of attorney is durable and immediately effective by default unless you state otherwise, while the health care document's agent authority always waits for your attending practitioner's written incapacity certification, with no immediate-effect option. Execution differs too: the financial power of attorney requires notarized acknowledgment only, while the health care document offers a true witness-or-notary choice.
No. New Hampshire law gives you a choice, not a combined requirement. You can sign in front of two or more qualifying witnesses, or sign with your signature acknowledged before a notary public or justice of the peace. You do not need both (RSA 137-J:14).
Your doctor cannot serve as your witness if you choose the witness route. Your attending practitioner, and anyone acting under that practitioner's direction, are barred from witnessing, and your attending practitioner also cannot serve as your agent (RSA 137-J:8, RSA 137-J:14). A nonrelative employee of your health care or residential care provider is similarly barred from serving as your agent, though a relative who works for that provider is not disqualified on that ground alone.
No. New Hampshire does not operate a central registry for Advance Directives or Durable Powers of Attorney for Health Care. New Hampshire does maintain a separate Donor Registry under RSA 291-A, but that registry is only for organ, eye, and tissue donation decisions, not health care agent designations. Keep the signed original yourself and give copies to your agent, your attending practitioner, and any alternate agents.
You can revoke it by written notice to your agent or a health or residential care provider, by oral revocation in the presence of two qualifying witnesses, by any other act showing your clear intent to revoke, such as destroying the document, or by signing a later advance directive (RSA 137-J:15). Filing for divorce, legal separation, annulment, or a protective order naming your spouse as agent also automatically revokes that agent's designation unless you named an alternate.
New Hampshire law allows another adult to sign the document with your name, as long as they do it in your physical presence and at your express direction. The document is still valid (RSA 137-J:14, II).