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Bar News - August 20, 2014

Healthcare Surrogates Are Coming to New Hampshire


Tina Annis

Jeffrey Zellers
New Hampshire has joined 42 other states by establishing surrogates for health care decision-making.

Since 1991, New Hampshire has legally recognized the role of an agent to make health care decisions for an individual who lacks the capacity to make those decisions. The role and boundaries of the agent’s authority are primarily defined by NH RSA 137-J and by the terms of a durable power of attorney that the individual must sign while they have capacity.

In the absence of a durable power of attorney for health care (DPOAHC), health care providers and families sometimes struggled with directing and providing care for the incapacitated loved one. Providers lacked certainty as to who could provide direction for the care of their patient and family members at times squabbled over what care the incapacitated family member would have wanted.

The amendment of NH RSA 137-J, brought about by the passage of HB 1434 in 2014, now creates a default mechanism for the identification of an agent for an incapacitated patient. That default agent is called a “surrogate decision-maker.” The surrogate is given the same decision making authority that a designated agent under a DPOAHC is given by statute. However, the surrogate lacks the principal’s written direction as to what care they would want under specified circumstances.

The change in law is effective Jan. 1, 2015, and while it eliminates some issues around health care decision-making, it has the potential to create others. Some highlights are as follows:
When Does the Surrogacy Law Apply?
The surrogate may be identified when the incapacitated patient lacks a valid Living Will or DPOAHC (or the documents cannot be found), or when there is a valid DPOAHC but the authorized agent is not available. Therefore, it is important that a client’s DPOAHC is on file with the client’s health care providers and the hospital(s) the client is likely to use. Because most other states have similar surrogacy laws, it is wise to place the DPOAHC on file with providers and hospitals the client uses where they regularly vacation.
Surrogates are Identified by Priority
The pool of candidates who may act as surrogates consists primarily of family members, but also includes non-family members. First in the order of priority to serve as surrogate is a spouse, civil union partner or common law spouse (if there is no divorce proceeding, separation agreement or restraining order).

Interestingly enough, in New Hampshire “common law spouse” recognition occurs only at death. Clarification is needed, otherwise the common law spouse provision would appear to have very limited application.

Next in order of priority are: any adult son or daughter of the patient; either parent; adult sibling; adult grandchild; grandparent; adult aunt, uncle, niece or nephew; close friend; agent under financial POA or conservator; and guardian of the patient’s estate.
Health Care Providers Given Greater Control
The identification of a surrogate is not automatic. When a patient lacks the ability to make health care decisions, the patient’s attending physician or advanced practice registered nurse (APRN) is obliged to make a “reasonable inquiry” as to whether the patient has an existing guardian or authorized agent (under a DPOAHC).

A physician or APRN may (but is not obligated to) then identify a surrogate from the list of candidates after making a “reasonable inquiry” that no guardian, DPOAHC agent or surrogate of higher priority is available and willing to act. Issues may arise over whether a “reasonable inquiry” was undertaken, as the term is not defined in the statute. New Hampshire’s law is based on Wisconsin law, which may provide guidance.

A physician or APRN may revoke a surrogacy if the surrogate is unwilling or unable to act. A surrogate may also be removed in favor of a surrogate candidate of higher priority.
Patient Control
A surrogate may not be identified over the express objection of the patient and a surrogate’s role shall be terminated when the patient objects. While presumptively leaving control with the patient, this provision potentially limits the value of the law to providers.
Surrogate Role Limited in Duration
A surrogate is authorized to act as such for up to 90 days after identification of the surrogate has been recorded in the patient’s medical record. The surrogacy will terminate if the patient regains health care decision-making capacity, a guardian is appointed or, interestingly enough, the patient is “near death” as currently defined in RSA 137-J:2, XVI. The statute does not appear to prohibit the same surrogate from being identified again as surrogate for up to another 90 more days and so on.
Dispute Resolution by Potential Surrogates
Where there are multiple surrogate candidates of the same level of priority, it “shall be their responsibility” to make reasonable efforts to reach a consensus as to health care decisions for the patient. This appears to be the case even before anyone has been identified by the health care provider as a surrogate and even though co-surrogates are not expressly authorized.

Ultimately, the decision of a majority of the available people at that level of priority will determine the health care decision. The benefit of this provision to health care providers is great and can save substantial hospital resources dealing with contentious families.
Continuing Role of Guardianship
No health care provider or other person is required to seek appointment of a guardian. However, initiation of a guardianship proceeding will place an existing surrogate’s authority on hold pending the outcome of the proceedings. This “staying” effect also applies to the consensus and majority rule approach described above.

While questions remain, the new law provides a valuable backstop to health care decision-making. The law was a long time coming and involved a lot of hard work by a number of people. Attorneys should inform their clients (particularly those without a DPOAHC) of the new law and the choices that will be made for them in the absence of an available health care agent or Living Will.
Tina Annis and Jeffrey Zellers are the founding members of Annis & Zellers PLLC at 2 South State Street in Concord. Their practice includes estate planning, elder law, tax, and business law. Attorneys Annis & Zellers have over forty years of combined experience in these areas, and are frequent speakers in the community on the subjects of tax and estate planning. Find out more at or on Twitter.

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