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Bar News - July 7, 2006

Summary of HB 656 Changes


The following is a brief summary of some of the major changes that will go into effect in January. For the complete bill, go to:


A single statute and form for all advance directives


RSA 137-H (Living Wills) and RSA 137-J (Durable Power of Attorney for Health Care) will be repealed. RSA 137-J will be reenacted and entitled “Written Directives for Medical Decision Making for Adults without Capacity to Make Health Care Decisions.” Provisions for living wills, health care powers of attorney and DNR orders will be included in a single, recodified statutory scheme. Terms such as “near death” and “permanently unconscious,” are defined and used in a manner intended to better reflect current medical understanding and practice. 


Statutory forms and formalities of execution


A revised statutory advance directive form includes in a single document both living will and durable power of attorney for health care provisions. Individuals may execute either or both sections of the form. The form must be signed by the principal in the presence of either two or more subscribing witnesses or a notary public or justice of the peace. The rationale for eliminating the requirement of a notary is that the unavailability of a notary (particularly to homebound individuals or those in facilities where notaries are not always available) should not be a barrier for someone wishing to execute an advance directive. This approach is used in many states and recommended by the Uniform Health Care Decisions Act. Language in the form is clarified and the use of double negatives eliminated.


A statutory framework for Do Not Resuscitate (DNR) orders


A statutory framework is put into place for honoring and communicating patient preferences relative to cardiopulmonary resuscitation. Provisions governing DNR orders issued by health care providers will apply regardless of whether a patient has advance directives. The statute will provide for the issuance of identification cards, necklaces or bracelets, and for protection from liability for providers complying with DNR orders. DNR orders are often issued when a patient with a terminal illness has asked to be allowed to die naturally or when attempting resuscitation will likely cause trauma without likelihood of success. There was testimony that when patients with DNR orders moved from one health care setting to another sometimes orders were not communicated to or followed by providers in the receiving facility. And, the state law also did not provide needed guidance on DND orders to emergency services personnel and other providers.


Expanded authority of nurse practitioners


Advanced Registered Nurse Practitioners (ARNPs) will have the authority to certify a patient’s lack of capacity, co-sign with a physician as to a patient’s “near death” or “permanently unconscious” status and sign a DNR order. However, the form allows the principal to choose to strike references to ARNPs if the principal does not want an ARNP to be involved in such decisions. This change recognizes the important role of ARNPs as primary care providers who have established relationships with their patients, particularly in rural and underserved areas.


Providers who object to following advance directives or DNR orders


Providers are bound to follow advance directives and the instructions of agents acting within the scope of their authority and within the bounds of responsible medical practice. Providers with moral or ethical objections to complying with an advance directive or DNR order are required to inform patients or agents and, if requested, arrange transfer of the patient to another provider. Any provider that does not honor DNRs or living wills will be required to post a notice 8.5 inches by 11 inches or larger at every place of admission.


Treatment given or withheld over the objection of the principal


Current law provides that if an advance directive is in effect and the principal is incapacitated, treatment may not be given or withheld over the objection of the principal. This provision is maintained, but the principal will be able to waive the right to object by initialing an option in the advance directive form that reads: “Even if I am incapacitated and I object to treatment, treatment may be given to me against my objection.” The new option, if selected, is intended to avoid the need for family members or providers to seek a guardianship in cases where the provider believes the patient is incapacitated but the patient disagrees or objects to the specific treatment that is recommended. However, by selecting this option the principal risks losing the legal and procedural protections of the guardianship process.


Access of agents to protected health information


Language has been added to explicitly authorize providers to share health information and copies of advance directives with agents. Some attorneys reported that certain facilities were refusing to share information with agents because of policies they had adopted to comply with the HIPAA privacy provisions, despite language in existing law relative to inspection and disclosure of medical information. New language is intended to encourage providers to communicate with agents and provide copies of advance directives as necessary to facilitate treatment.


Circumstances under which life-sustaining treatment may be withheld or withdrawn


Language is added to allow the withdrawal or withholding of medically administered nutrition and hydration and life-sustaining treatment under an advance directive even in the absence of a clear expression of such intent in the directive, if such treatment would have the unintended consequence of hastening death or causing irreparable harm.


Certain domestic relations actions constitute revocation


An advance directive will be considered revoked by the filing of an action for legal separation, annulment or protective order, as well as a divorce, where both the agent and the principal are parties to such action. Current law provides for revocation upon the filing of an action for divorce.


Appointing co-agents


If the principal lists more than one person as an agent, the agents will have authority in priority of the order in which their names are listed on the document, unless the method of joint agency is expressly included.


Civil actions challenging the authority of an agent


The principal is added as a person who can challenge an agent’s authority. Additional language allows a legal challenge to the authority of an agent to act for reasons other than an allegation that the principal was not of sound mind or was under duress or undue influence at the time of execution.


Validity of advance directives executed prior to January 1, 2007


Living wills and durable powers of attorney for health care validly executed under prior New Hampshire law will continue to be valid and enforceable.


Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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