Only one-third of NH residents have taken advantage of their right to select a family member or friend to make health care decisions should he or she become incapacitated.
That’s despite the fact that they have had the ability to do so for the past 25 years through a simple Durable Power of Attorney for Health Care document, also known as an advance directive. It remains to be seen if a new law taking effect on Jan. 1 will change that. The new Surrogate Health Care Decision-Making law will allow health care providers to designate a surrogate health care decision-maker for those incapacitated adults who have failed to choose their own decision-maker. The law provides a priority list of family members and friends from which the doctor or nurse practitioner chooses.
The new law fills an important gap. Previously, health care providers had no legal authority to render medical care (except in cases of emergency) to incapacitated patients without consent of a legally authorized adult.
Under NH law, the only people legally authorized to give consent to treatment were those designated under a Health Care Durable Power or a guardian appointed by the NH Probate Court. Many people have been shocked to learn that they as spouse, adult child or sibling are powerless to make health care decisions for their loved ones because they have not been legally designated to do so.
The Chosen Few
As of January, the new law will, by default, empower those listed in the priority order below to step into the role of health care decision-maker for a patient who has not completed a Health Care Durable Power:
• The patient’s spouse, or civil union partner or common law spouse, unless there is a divorce proceeding, separation agreement or restraining order limiting that person’s relationship with the patient;
•Any adult son or daughter of the patient;
•Either parent of the patient;
•Any adult brother or sister of the patient;
•Any adult grandchild of the patient;
•Any grandparent of the patient;
•Any adult aunt, uncle, niece or nephew of the patient;
•A close friend of the patient;
•The agent with financial power or a conservator appointed in accordance with RSA 464-A.
After the surrogates have been identified, their names will be recorded in the patient’s medical record, and they will be afforded the same rights as an agent selected under a Health Care Durable Power (including the right to consent to health care for the patient and the right to access the patient’s medical records). However, the law provides that the surrogate’s authority only lasts 90 days, whereas the agent’s power under a Durable Power lasts for as long as the patient remains incapacitated.
To the extent that there are multiple surrogates who are in the same priority level under the law (such as several siblings), it is the responsibility of those surrogates to make “reasonable efforts” to reach a consensus as to the best health care decision for the patient. If they cannot agree, a majority of the available persons in that category will prevail, unless the minority or any other interested party initiates guardianship proceedings in the Probate Court.
Also, if an “interested party” wishes to challenge the appropriateness of a particular surrogate, he or she may file a petition for guardianship in the Probate Court. For example, under the new law’s priority list, stepparents and stepchildren have no authority to be considered a surrogate health care decision-maker. Thus, a step-mother could petition the Probate Court to assert that she is a more appropriate choice than the patient’s natural mother.
Practical Tips
For those who decide to take matters into their own hands by executing a Health Care Durable Power, here are some practical tips:
• Go to the NH Foundation for Healthy Communities’ website, read their guide to executing an Advance Directive/Health Care Durable Power and download the form for free at healthynh.com.
• If you do not understand the guide or form or have questions, call the NH Foundation for Healthy Communities’ office or your attorney.
• When you are considering who should act as your agent(s), remember that you might want to include not only your spouse but also a younger member of your family since your spouse may be elderly and incapacitated himself/herself when its time to act.
Remember to update your advance directives periodically, based on changed circumstances.• If you want to list more than one agent, such as all of your children, keep in mind that a relatively new amendment to the advance directives law directs that the first named child has superior power unless you include a provision that you wish to vest all of your children with equal authority.
• Once you have designated an agent, make a point of sitting down with your designated agents to explain to them your views on health care decisions, particularly end of life decisions. Let them know whether you want extraordinary measures to be taken to keep you alive and under what circumstances. Agents have an obligation under the law to carry out your expressed wishes.
• Be sure to give a copy of your Health Care Durable Power/Advance Directive to any hospital to which you would likely be admitted and to your primary care physician. Also give copies to your agent(s), attorney and loved ones so it will be available and implemented by the appropriate parties.
• Consider how you wish to address this question: “If I am incapacitated, do I want to reserve the right to override my Agent?” Due to an anomaly in the Advance Directives law, unless you answer “no” to this question, the law will allow a person, even if incapacitated (such as with severe dementia), to override the health care decision of his or her appointed agent. Most people go to the trouble of executing a Health Care Durable Power (when competent) for the very reason that they want the agent to make rational health care decisions for them in the event they become incapacitated. So they will want to be sure to check the box “no,” indicating that they do not want to be able to override their agent if and when they are deemed to be incapacitated.