New Hampshire Advance Directive: What It Covers and How to Complete One

Most people assume they need separate documents for a living will, a healthcare proxy, and end-of-life instructions. In New Hampshire, you don't. The state consolidates everything into a single statutory form under RSA 137-J — combining the Durable Power of Attorney for Health Care (DPOAH) and the Living Will into one document.

That simplicity is a genuine advantage. But it also means a single mistake during execution can invalidate both your agent designation and your treatment instructions at the same time.

What New Hampshire's Advance Directive Actually Does

The New Hampshire advance directive is a legal document that accomplishes two things simultaneously:

The DPOAH portion lets you appoint a healthcare agent — a specific person authorized to make medical decisions when you cannot. Under the 2021 SB 74 amendments, your agent's default authority is broad: they can consent to or refuse treatment, access your medical records, and even authorize a POLST form on your behalf.

The Living Will portion lets you document specific treatment preferences — whether you want life-sustaining measures continued or withdrawn if you are terminally ill or permanently unconscious. You can also add a "Living Will Burdens" addendum listing specific conditions or treatments you consider unacceptable.

The directive is dormant until activated. Your attending practitioner must certify in writing that you lack the capacity to make informed healthcare decisions. If you regain capacity, the practitioner certifies that too, and decision-making authority reverts to you.

Who Can Complete One

Any adult aged 18 or older with decision-making capacity can execute a New Hampshire advance directive. You do not need an attorney. The state's disclosure statement under RSA 137-J:19 explicitly tells you that the form is designed for self-completion.

A diagnosis of mental illness, brain injury, or intellectual disability does not automatically disqualify you. New Hampshire law requires a functional assessment — can you understand your medical condition and the consequences of treatment choices? If yes, you have capacity to sign.

How to Make It Legally Binding

New Hampshire gives you two pathways to execute the document — you only need one:

Option A: Two witnesses. Both must be present when you sign. Neither witness can be your designated healthcare agent, your spouse, an heir, anyone entitled to a share of your estate, or your attending physician. No more than one witness can be an employee of your healthcare provider.

Option B: A notary public or justice of the peace. This is often simpler — one person, one acknowledgment, no disqualification rules to navigate.

If you are physically unable to sign, another person can sign your name in your presence and at your verbal direction.

What Happens Without One

Without an advance directive, New Hampshire law activates a default surrogacy hierarchy under RSA 137-J:35. Your attending practitioner identifies a surrogate from a priority list: surviving spouse first, then adult children, parents, siblings, grandchildren, grandparents, aunts/uncles/nieces/nephews, close friends, and finally a financial power of attorney agent.

The problems start when multiple people at the same priority level disagree. If three adult children split on a treatment decision, the majority rules — but an even split forces the family into probate court for a guardianship proceeding. And a surrogate's authority expires after 180 days regardless, unless you are certified as actively dying.

An advance directive eliminates all of this by designating one person with clear authority.

Common Pitfalls to Avoid

Confusing the advance directive with a DNR. Your advance directive expresses future wishes. A Do Not Resuscitate order is an active medical order signed by a physician. If you call 911, paramedics must perform CPR unless they see a signed Portable DNR (bright pink form) or POLST (bright yellow form). Your advance directive alone will not stop resuscitation in the field.

Naming your spouse as agent without a backup. If your marriage is later dissolved or annulled, the agent designation is automatically revoked by operation of law. Always name an alternate agent.

Storing the original in a safe deposit box. If your agent cannot physically access the document during a medical emergency, it is functionally useless. Keep the original in an accessible location at home and distribute copies to your agent, your primary care physician, and the hospital where you are most likely to receive care.

Getting Started

The New Hampshire Advance Directive & Living Will Kit walks you through every section of the statutory form, including the agent selection criteria, the Living Will treatment preferences, and the execution safeguard checklist that ensures your document meets all RSA 137-J requirements. It takes most people 30 to 45 minutes to complete.

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