Default Medical Decision Maker in New Hampshire: The Surrogacy Hierarchy

If you lose the capacity to make medical decisions and you haven't executed an advance directive, New Hampshire law doesn't leave the decision to chance. Under RSA 137-J:35, your attending practitioner must identify a surrogate decision-maker from a statutory priority list and record the designation in your medical chart.

This default system keeps medical care from stalling. But it also creates risks that most families don't anticipate until they're already in a hospital waiting room.

The Priority Hierarchy

New Hampshire's surrogate hierarchy under RSA 137-J:35 follows a strict order. Your attending practitioner moves down the list until they identify an available, willing surrogate:

1. Surviving spouse or civil union partner (disqualified if there's an active divorce proceeding, separation agreement, or restraining order)
2. Adult son or daughter (age 18+)
3. Parent (biological or adoptive)
4. Adult brother or sister (age 18+)
5. Adult grandchild (age 18+)
6. Grandparent (biological or adoptive)
7. Adult aunt, uncle, niece, or nephew (age 18+)
8. Close friend (must have maintained regular contact and familiarity with your activities, health, and beliefs)
9. Financial power of attorney agent or conservator
10. Guardian of your estate

Where This System Breaks Down

The hierarchy works smoothly when there's one clear person at the top of the list. But families are rarely that simple.

Multiple surrogates at the same priority level. If you have three adult children and they disagree about your treatment, the attending practitioner must follow the majority decision. With two children, a split vote creates a deadlock. The only resolution is for the disagreeing parties to initiate guardianship proceedings in the Circuit Court Probate Division — a public, adversarial legal process that takes weeks or months while medical decisions hang in limbo.

The 180-day authority cap. Under RSA 137-J:37, a surrogate's decision-making authority expires automatically after 180 days from the date they were identified. The only exceptions: the patient has been certified as actively dying, or a formal guardian has been appointed by the court. For patients with chronic conditions or slow cognitive decline, this time limit can force families into court to extend decision-making authority — exactly the kind of institutional bureaucracy the surrogacy system was supposed to prevent.

The patient objection rule. If you express any verbal or non-verbal objection to the surrogacy — even without full decision-making capacity — the surrogate's authority is immediately terminated. This protects patients from unwanted decision-makers, but can also create confusion when a patient with dementia or delirium makes statements that are difficult to interpret.

Life-Sustaining Treatment Restrictions

When a surrogate needs to make an end-of-life decision — withholding or withdrawing life-sustaining treatment, including artificial nutrition and hydration — additional safeguards apply. The attending practitioner must certify the patient's lack of capacity in writing, and two physicians (or one physician and an APRN) must certify in writing that the patient is either near death or permanently unconscious.

The surrogate must also make a documented, good-faith effort to investigate the patient's actual values and desires — interviewing family, reviewing any prior written statements, and considering the patient's religious or moral beliefs.

These requirements exist because the patient did not leave explicit instructions. The medical team and surrogate are essentially reconstructing what the patient would have wanted, rather than following documented preferences. It's a slower, more uncertain process than honoring a written advance directive.

Why the Hierarchy Matters for Estate Planning

The surrogate hierarchy has indirect financial consequences. A surrogate's care decisions — choosing aggressive treatment versus comfort care, selecting a particular facility, authorizing or refusing procedures — directly affect the cost of care. In New Hampshire, where the DHHS Estate Recovery Unit can recover Medicaid-funded long-term care costs from a decedent's estate (including non-probate assets like joint tenancies and revocable trusts), the financial stakes of these care decisions extend well beyond the hospital.

An advance directive lets you choose someone who understands both your medical preferences and your financial situation — not just whoever appears first on a statutory list.

The New Hampshire Advance Directive & Living Will Kit lets you bypass the default hierarchy entirely by designating your own healthcare agent with clear, documented authority and treatment preferences.

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