New Hampshire Advance Directive Law: RSA 137-J and the 2021 SB 74 Update

If you're completing an advance directive in New Hampshire, everything flows from one statute: RSA Chapter 137-J, titled "Written Directives for Medical Decision Making for Adults Without Capacity to Make Health Care Decisions." It's the legal foundation for the combined DPOAH and Living Will form, the rules governing healthcare agents, and the default surrogacy hierarchy.

Most of the online guides paraphrase this statute loosely. Here's what it actually says — and how the 2021 SB 74 amendments changed the rules in ways that matter for your planning.

What RSA 137-J Establishes

The statute creates a unified advance directive system with several key components:

Combined form (RSA 137-J:20). New Hampshire provides a statutory form that integrates the Durable Power of Attorney for Health Care and the Living Will into a single document. You can use the state's form or create your own, as long as it substantially complies with the statutory requirements.

Execution rules (RSA 137-J:14). The document must be signed by the principal (or by another person at the principal's direction, in their presence). It requires either two qualified witnesses or acknowledgment by a notary public or justice of the peace. The statute lists specific disqualifications for witnesses: no agent, spouse, heir, estate beneficiary, or more than one healthcare provider employee.

Capacity determination (RSA 137-J). The directive activates only when the attending practitioner certifies in writing that the principal lacks decision-making capacity. A diagnosis of mental illness or brain injury alone is not sufficient — the determination must be based on functional inability to understand medical conditions and treatment consequences.

Revocation (RSA 137-J:15). A principal with capacity can revoke at any time through written revocation, oral revocation before two witnesses, physical destruction, or executing a new directive.

Reciprocity (RSA 137-J:17). New Hampshire recognizes advance directives executed in other states, provided they comply with that state's execution requirements or meet New Hampshire's standards.

Provider immunity (RSA 137-J:12). Healthcare providers who act in good faith reliance on a valid directive receive civil and criminal immunity. Providers with conscientious objections must inform the patient or agent and facilitate transfer to a willing provider.

The 2021 SB 74 Changes

Senate Bill 74, passed in 2021, was the most significant update to RSA 137-J in recent years. It expanded the default authority of healthcare agents in ways that affect every new advance directive:

Broadened default authority. Before SB 74, agents had only the authority explicitly granted in the directive. After SB 74, agents have broad default authority unless the principal specifically restricts it. This means your agent can consent to or refuse treatment, access medical records, authorize transfers between care facilities, and communicate with your treatment team — all without needing you to enumerate each power individually.

POLST authorization. Your healthcare agent now has default authority to request and authorize a POLST (Provider Orders for Life-Sustaining Treatment) on your behalf. Previously, agents needed explicit written authorization in the directive to take this step. This is a meaningful expansion — it allows your agent to convert your advance directive preferences into active medical orders without additional paperwork.

Practical impact. If you executed your advance directive before 2021, it may not reflect the expanded default authority. You don't necessarily need to redo it — the statute applies to all existing directives — but reviewing your document to ensure it doesn't inadvertently restrict the new default powers is worthwhile.

Default Surrogacy (RSA 137-J:35-37)

When someone lacks capacity and has no advance directive, the statute establishes a ten-tier surrogate hierarchy: spouse, adult children, parents, siblings, grandchildren, grandparents, aunts/uncles/nieces/nephews, close friends, financial POA agents, and estate guardians.

The surrogate system includes several constraints: the 180-day authority cap (RSA 137-J:37), the patient objection rule, and the requirement for majority consensus when multiple surrogates at the same priority level disagree. These limitations make the default system a safety net, not a substitute for proper planning.

What the Statute Doesn't Cover

RSA 137-J governs healthcare decision-making only. It does not address:

• Financial powers of attorney (governed by RSA 564-E)
• Guardianship proceedings (governed by RSA 464-A)
• Probate and estate administration (governed by RSA 553)
• Medicaid estate recovery (governed by RSA 167:14-a)

Comprehensive end-of-life planning requires addressing all of these areas, not just the advance directive.

The New Hampshire Advance Directive & Living Will Kit translates RSA 137-J's statutory requirements into a step-by-step process, incorporating the post-SB 74 default authority framework and ensuring your document is fully compliant with current law.

See more New Hampshire guides →