New Hampshire Revised Statutes 137-J:35 – Surrogate Decision-making
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I. When a patient lacks capacity to make health care decisions, the attending practitioner shall make a reasonable inquiry pursuant to 137-J:7 as to whether the patient has a valid durable power of attorney for health care and, to the extent that the patient has designated an agent, whether such agent is available, willing and able to act. When no health care agent is authorized and available, the health care provider shall make a reasonable inquiry as to the availability of possible surrogates listed under this paragraph. A surrogate decision-maker may make medical decisions on behalf of a patient without court order or judicial involvement in the following order of priority:
(a) The patient’s spouse, or civil union partner or common law spouse as defined by N.H. Rev. Stat. § 457:39 if the principal were currently deceased, unless there is a divorce proceeding, separation agreement, or restraining order limiting that person‘s relationship with the patient.
(b) Any adult son or daughter of the patient.
(c) Either parent of the patient.
(d) Any adult brother or sister of the patient.
(e) Any adult grandchild of the patient.
(f) Any grandparent of the patient.
(g) Any adult aunt, uncle, niece, or nephew of the patient.
(h) A close friend of the patient.
(i) The agent with financial power of attorney or a conservator appointed in accordance with RSA 464-A.
(j) The guardian of the patient’s estate.
II. The attending practitioner may identify a surrogate from the list in paragraph I if the attending practitioner determines the surrogate is able and willing to act, and determines after reasonable inquiry that neither a legal guardian, health care agent under a durable power of attorney for health care, nor a surrogate of higher priority is available and able and willing to act. The surrogate decision-maker, as identified by the attending practitioner, may make health care decisions for the patient, in accordance with N.H. Rev. Stat. § 137-J:6. The surrogacy provisions of this chapter shall take effect when the decision-maker names are recorded in the medical record. The attending practitioner shall have the right to rely on any of the above surrogates if the attending practitioner believes after reasonable inquiry that neither a health care agent under a durable power of attorney for health care or a surrogate of higher priority is available or able and willing to act.
(a) The patient’s spouse, or civil union partner or common law spouse as defined by N.H. Rev. Stat. § 457:39 if the principal were currently deceased, unless there is a divorce proceeding, separation agreement, or restraining order limiting that person‘s relationship with the patient.
Terms Used In New Hampshire Revised Statutes 137-J:35
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- following: when used by way of reference to any section of these laws, shall mean the section next preceding or following that in which such reference is made, unless some other is expressly designated. See New Hampshire Revised Statutes 21:13
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- person: may extend and be applied to bodies corporate and politic as well as to individuals. See New Hampshire Revised Statutes 21:9
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
(b) Any adult son or daughter of the patient.
(c) Either parent of the patient.
(d) Any adult brother or sister of the patient.
(e) Any adult grandchild of the patient.
(f) Any grandparent of the patient.
(g) Any adult aunt, uncle, niece, or nephew of the patient.
(h) A close friend of the patient.
(i) The agent with financial power of attorney or a conservator appointed in accordance with RSA 464-A.
(j) The guardian of the patient’s estate.
II. The attending practitioner may identify a surrogate from the list in paragraph I if the attending practitioner determines the surrogate is able and willing to act, and determines after reasonable inquiry that neither a legal guardian, health care agent under a durable power of attorney for health care, nor a surrogate of higher priority is available and able and willing to act. The surrogate decision-maker, as identified by the attending practitioner, may make health care decisions for the patient, in accordance with N.H. Rev. Stat. § 137-J:6. The surrogacy provisions of this chapter shall take effect when the decision-maker names are recorded in the medical record. The attending practitioner shall have the right to rely on any of the above surrogates if the attending practitioner believes after reasonable inquiry that neither a health care agent under a durable power of attorney for health care or a surrogate of higher priority is available or able and willing to act.