N.H. legislation could fill health directive gap

Only a third of Granite Staters have an advance directive

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). Through the directive, a competent adult may designate an agent to make health care decisions on his or her behalf, should he or she become incapacitated in the future (either temporarily or permanently). Yet only one-third of New Hampshire citizens have taken advantage of this opportunity to execute an advance directive.

The Legislature, through House Bill 1434, is perched to address the dilemma in which the majority of New Hampshire family members find themselves – without legal authority to make health care decisions for an incapacitated loved one.

HB 1434 easily passed the House at the end of March and awaits a vote by the Senate.

Under current New Hampshire law, the only people who are legally authorized to make health care decisions for an incapacitated adult are an agent under a durable power of attorney for health care document or a guardian appointed by the probate court.

Most people are shocked to learn that they (as spouse, adult child, sibling or close family member) otherwise have no authority under New Hampshire law to make health care decisions for an incapacitated member of their family. Thus, a wife may learn for the first time after her husband’s serious car accident that she cannot consent to medical procedures for her incapacitated husband because he has no advance directive. In the midst of her grieving over the car accident, she may find herself petitioning the probate court for guardianship over her husband in order to gain such legal authority.

The probate court process is not only expensive, but it can also take weeks to obtain a hearing.

Path of least resistance

Why have so few New Hampshire residents taken advantage of their right to execute an advance directive? Some view the process as too time-consuming or expensive. But it is neither. One can download a free form from the Foundation for Healthy Communities’ website (healthynh.com) and complete it within minutes.

Some do not want to contemplate the unsettling situation of finding themselves — as most of us will some day — in a situation in which they have lost their ability to make health care decisions because of a temporary or permanent coma, dementia, Alzheimer’s or other situation. Others have never heard of a durable power of attorney for health care.

Folks tend to take the path of least resistance and do nothing in terms of exercising their autonomy to select the person or persons whom they most trust to speak for them in such a situation.

HB 1434 comes into play only if one is declared “incapacitated to make health care decisions” by her physician or nurse practitioner and if she has not completed a durable power of attorney for health care document.

The law sets forth a priority list of family members and friends (spouse, adult child, sibling, etc.) who, by default, are given legal authority to make health care decisions for the patient. The law includes careful safeguards for the removal of any family member who is not acting in the best interest of the patient, and ultimately, if family members disagree about the proper treatment for the patient, the family may (as is currently the case) seek resolution through the probate court.

This legislation provides a commonsense solution for the majority of New Hampshire citizens who have failed to execute an advance directive. And perhaps it will serve as a wake-up call to folks to take an hour out of their day to download the durable power of attorney for health care form so that they can hand-select their own health decision maker.

Kate Hanna is a shareholder and chair of the Health Care Practice Group at the law firm of Sheehan Phinney Bass + Green. She can be reached at 603-627-8106 or khanna@sheehan.com.