New Hampshire Q and A

Ten commonly asked questions about PAD’s for New Hampshire

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s Statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  The answers were accurate when written in December 2006.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes, by appointing an agent.  New Hampshire’s Written Directives for Medical Decision Making for Adults Without Capacity to Make Health Care Decision statute allows you to appoint an agent to make healthcare decisions for you if you become incompetent to make those decisions yourself.  Healthcare decisions may include decisions about mental health.  Although not mandatory, it is recommended that you use the statutory Durable Power of Attorney form to appoint your agent.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

The New Hampshire statutes do not allow you to write advance instructions for your psychiatric care in a freestanding document, unless they concern end-of-life (life sustaining) procedures.  However, if you appoint an agent, you may wish to specify how you would like that person to make decisions for you.  If there are particular matters that you wish your agent to make clear to your treating physicians, it is advisable to discuss them with your agent and document them clearly in section 4 of the statutory Durable Power of Attorney form.

3.  Does anyone have to approve my advance instructions at the time I make them?  

No.  However, your form must be signed by two witnesses.  Neither witness may be your spouse or heir, or the agent him or herself.  Only a maximum of one witness may be an employee of your health or residential care provider.  The witnesses must sign to declare that you were of “sound mind” and not under duress when you created the document.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes, as outlined above.  Your agent must be someone other than an employee of your healthcare or residential care provider, unless a relative of yours.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  The general rule is that your agent may consent or refuse any medical treatments or procedures on your behalf when you are incompetent to make decisions yourself.  However, your agent may not consent on your behalf to: (1) your commitment or placement in a mental health treatment facility; (2) sterilization); (3) life-sustaining treatment, if you are pregnant.  The general rule is also subject to the exceptions set out at question 9 below.   If you wish to limit your agent’s decision making power to certain types of decision, you may say so in section 4 of the form.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”? 

Your agent must use substituted judgment wherever he/she knows of your wishes.  If your wishes are not known, your agent must act in your best interests.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

Yes.  As explained above, it is not possible to write advance instructions only.  If you wish to create a PAD, you must appoint an agent, but the extent to which you also document your decisions is up to you.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  The statute states that the agent’s authority goes into effect as soon as you “lack capacity to make health care decisions”.  This is determined by your attending physician, who must document that decision in your medical notes.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  Your provider may decline to treat you in accordance with your agent’s instructions if they are “contrary to the moral or ethical principles or other standards” of the institution.  Further, although not set out in the statute, it is likely that your provider could decline to follow your agent’s instructions if you were committed under New Hampshire’s involuntary treatment laws.

10.  How long does my PAD remain valid?

Your document is valid until revoked.  You may revoke it at any time by telling your providers of that intention or by making a new document.  If you appoint your spouse as your agent and subsequently become divorced, you must amend your document to make it clear who should serve as your agent.