Finance
No information available at this time.
Education
No information available at this time.
Health
Instrument: Durable Power of Attorney for Health Care (DPOAHC)
What is it for?
The “durable power of attorney for health care” (DPOAHC) is a type of advance directive that allows an individual (the “principal”) to appoint another (the “agent” or “surrogate”) to have the authority to make health care decisions on the principal’s behalf in the event the principal lacks capacity to make health care decisions.
What does it do?
The DPOAHC empowers the agent to make any and all health care decisions for the principal if the principal lacks capacity to do so, with some exceptions. N.H. Rev. Stat. Ann. § 137-J:5(I). The agent may not consent to involuntary admission to a state institution; to sterilization, psychosurgery, or electro-convulsive shock therapy; or to withholding lifesaving treatment from a pregnant principal. N.H. Rev. Stat. Ann. § 137-J:5(I)(V). An agent may consent to clinical trials or experimental treatments on behalf of an incapacitated principal if that authority is granted in the DPOAHC. N.H. Rev. Stat. Ann. § 137-J:5(IV).
The DPOAHC is one of two kinds of advance directives, the other being a living will. A living will allows a principal to provide written guidance to their agent, surrogate, and/or medical practitioners in making decisions about life sustaining medical treatment if the principal cannot make their own decisions. A living will is an optional instrument that a principal may choose to execute in addition to or independently of a DPOAHC. N.H. Rev. Stat. § 137-J:20.
How does one make it?
The DPOAHC must be in writing and signed by the principal in the presence of a notary public, a justice of the peace, or at least two subscribing witnesses who are not the agent, the principal’s spouse or a person entitled to any part of the estate of the principal upon their death. The witnesses must affirm through a signature that the principal is of sound mind and signed the document free from duress. N.H. Rev. Stat. Ann. § 137-J:14(I). The principal must also be provided with a disclosure statement provided at N.H. Rev. Stat. Ann. § 137-J:13(1).
When does it come into effect?
The agent’s authority generally comes into effect only after the principal’s attending physician has certified that the principal lacks capacity to make health care decisions. If a principal regains their capacity, as certified by their attending practitioner, the agent’s authority end. N.H. Rev. Stat. Ann. § 137-J:5(II).
How long does it last?
Unless the DPOAHC itself provides for the power’s termination, the agent’s authority lasts unless the principal dies, regains capacity, executes a subsequent DPOAHC, or revokes the DPOAHC in writing. N.H. Rev. Stat. Ann. § 137-J:5 (I)(II); N.H. Rev. Stat. Ann. § 137-J:15 (I).
How does one end it?
A principal may end a DPOAHC by written revocation delivered to the agent or to a health care provider expressing their intent to revoke that is signed and dated by the principal. The principal may also revoke it orally in the presence of two or more witnesses or by some other act evidencing a specific intent to revoke the power such as by “burning, tearing, or obliterating” the document in question. N.H. Rev. Stat. Ann. § 137-J:15 (I).
What does an example look like?
A sample DPOAHC form is provided at N.H. Rev. Stat. Ann. § 137-J:20.
What else should one know?
A principal may list one or more agents in the DPOAHC. The agents shall have authority in the priority of the order in which their names are listed on the document, unless the power expressly includes a method of deciding joint agency. N.H. Rev. Stat. Ann. § 137-J:18.
Updated May 2022
General
Instrument: Power of Attorney (POA)
What is it for?
The “power of attorney” (POA) allows an adult (the “principal”) to appoint an “agent” to make decisions on a broad range of financial, educational, and other matters. The POA may not be used for certain decisions, such as health care decisions.
What does it do?
Generally, the POA allows the agent to make decisions relating to the principal’s property on the principal’s behalf. N.H. Rev. Stat. Ann. § 564-E:107. An adult student can also use the POA to appoint an agent for educational decisions. N.H. Code Admin. R. Ann. Ed 1120.01(c).
Generally, in acting on the principal’s behalf, the agent must follow the principal’s reasonable expectations, act in good faith, and act only within the scope of authority granted in the POA instrument itself. If the principal’s expectations are unknown, the agent must make reasonable efforts to ascertain the principal’s expectations. Otherwise, the agent must act in the principal’s “best interest.” N.H. Rev. Stat. Ann. § 564-E:114.
A POA is durable, that is, to remain valid despite the principal’s incapacity, unless it expressly provides that it ends following the incapacity of the principal. N.H. Rev. Stat. Ann. § 564-E:104.
Third parties generally must accept acts by an agent as if they had been done by a principal unless they know that the agent’s authority has ended or the POA is invalid. Third parties may also request a certification from the agent that the agent’s authority remains in effect. N.H. Rev. Stat. Ann. § 564-E:120.
How does one make it?
The POA must be in writing and signed (physically, not electronically) by the principal or in the principal’s presence by another individual at the principal’s direction, and it should be notarized. N.H. Rev. Stat. Ann. §§ 564-E:105(a) & (c).
The POA document must also include a specific disclosure statement that is signed by the principal. N.H. Rev. Stat. Ann. § 564-E:105(a)(2).
When does it come into effect?
The agent’s authority becomes effective when the DPOA is executed, unless the DPOA provides for it to become effective at a future date or upon the occurrence of a future event. The principal may authorize one or more persons to determine in writing or other record that the specified event has occurred. Neb. Rev. Stat. Ann. § 30-4009(1). If the DPOA takes effect upon the principal’s incapacity, as determined by either a licensed physician or psychologist, or a court or appropriate government official. Neb. Rev. Stat. Ann. § 30-4009(3).
“Incapacity” is defined as the principal’s inability to manage property or business affairs due to an impairment in the principal’s ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Neb. Rev. Stat. Ann. § 30-4002(6).
How long does it last?
A POA lasts until the principal or agent dies, the principal revokes the POA, the POA provides that it terminates at a certain time, or the POA’s purpose is accomplished. N.H. Rev. Stat. Ann. §§ 564-E:110(a), (b) & (d).
How does one end it?
A principal may end a POA by revoking it, presumably, by destroying it. The agent must be informed of the revocation for it to take effect. N.H. Rev. Stat. Ann. §§ 564-E:110(a), (b) & (d).
What does an example look like?
A sample POA form is provided at N.H. Rev. Stat. Ann. § 564-E:301.
What else should one know?
A person authorized to determine that the principal is incapacitated per the Principal’s POA may act as the principal’s personal representative to obtain access to a principal’s health care information and may communicate with the principal’s health care provider. N.H. Rev. Stat. Ann. § 564-E:109(d).
New Hampshire’s POA is based on the Uniform Power of Attorney Act.
Updated May 2022