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New Hampshire Advance Directive
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New Hampshire Advance Directive

New Hampshire puts a health care power of attorney and a living will in one advance directive under RSA 137-J. Sign before two witnesses or a notary, not both.

By Settled Editorial

New Hampshire puts both medical documents in one folder. Under RSA 137-J, a single advance directive carries a durable power of attorney for health care, which names your agent, and a living will, which records your own end-of-life wishes. You sign it in front of either two qualified witnesses or one notary public or justice of the peace. You never need both.

Read this page as a planning map. The wording that fits your health, your family, and your beliefs is a personal decision, and a licensed New Hampshire attorney or your own clinician can confirm your directive says what you mean before you sign it.

This guide pairs with the New Hampshire power of attorney guide, which covers the separate financial document, and with New Hampshire estate planning basics for the full New Hampshire document set.

What a New Hampshire Advance Directive Contains

RSA 137-J:2, II defines an advance directive as "a document allowing a person to give directions and guidance about future medical care and to designate another person to make medical decisions if the principal should lose the capacity to make health care decisions," and says the term "shall include a durable power of attorney for health care and a living will."

The statutory form at RSA 137-J:20 prints those two components as Part I and Part II of one document, over a single signature block in Part III. You may complete one part, the other, or both. New Hampshire does not run two separate filings, and there is nothing to record with a court or a registry.

The vocabulary is New Hampshire's own, so learn four words before you read a form:

  • Principal. You, once you have signed. RSA 137-J:2, XXIII sets the age at 18 or older.
  • Agent. The person you name in Part I to make health care decisions for you.
  • Surrogate. A family member or friend the hospital identifies when you named nobody.
  • Attending practitioner. RSA 137-J:2, V makes this a physician, a physician associate, or an advanced practice registered nurse with primary responsibility for your care. New Hampshire deliberately went wider than "physician" here.

New Hampshire did not adopt the Uniform Health-Care Decisions Act, and RSA 137-J sits in Title X, Public Health, rather than in the probate title. Answers ported from a neighboring state go wrong in specific places, and the rest of this page walks through each one.

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Naming Your Health Care Agent

Your agent may make any health care decision you could make, subject to the chapter and to any limit you write into the document (RSA 137-J:5, I). That reach includes consenting to or refusing treatment, admitting you to a facility, consenting to a do not resuscitate order, and requesting and receiving your medical and hospital records under RSA 137-J:9.

Two people are shut out. RSA 137-J:8 bars anyone from exercising an agent's authority while serving as your attending practitioner, or as a person acting under that practitioner's direct authority, or as a nonrelative employee of your health care or residential care provider. Read the word nonrelative carefully. An adult daughter who works at her mother's nursing home is not disqualified by that paragraph.

RSA 137-J:5, V then walls off five decisions no agent and no surrogate may make. None may consent to voluntary admission to a state institution, to voluntary sterilization, to psychosurgery, or to electro-convulsive shock therapy. None may consent to withholding life-sustaining treatment from a pregnant principal unless the attending practitioner and an examining obstetrician certify, to a reasonable degree of medical certainty, that the treatment will not maintain her so as to permit the continuing development and live birth of the fetus, or will physically harm her, or will prolong severe pain that medication cannot relieve.

One default surprises people. Under RSA 137-J:5, IV-a, an agent or surrogate may consent to an IRB-authorized clinical trial or experimental treatment in the immediately life-threatening and serious-condition situations the paragraph defines, unless your document says otherwise. The disclosure statement shows you the two sentences to write in if you want that authority widened or removed.

Name an alternate. If you list more than one person, RSA 137-J:18 gives them authority "in priority of the order in which their names are listed on the document, unless the method of joint agency is expressly included." The default is a queue. Joint agency works, but you have to write it in.

Two Witnesses or a Notary, Not Both

Here is the rule most summaries of New Hampshire law get wrong. RSA 137-J:14, I says the advance directive "shall be signed by the principal in the presence of either" two or more subscribing witnesses or "a notary public or justice of the peace, who shall acknowledge the principal's signature pursuant to the provisions of RSA 456-B."

Either route completes the document. A notary is a full substitute for the witnesses rather than an addition to them, and the statutory form says so on its face: "THIS ADVANCE DIRECTIVE MUST BE SIGNED BY TWO WITNESSES OR A NOTARY PUBLIC OR A JUSTICE OF THE PEACE."

If you use witnesses, RSA 137-J:14, I(a) disqualifies six categories at the time of execution:

  • Your agent or surrogate.
  • Your spouse.
  • Your heir at law.
  • Anyone entitled to any part of your estate on your death under a will, trust, other testamentary instrument or deed in existence, or by operation of law.
  • Your attending practitioner.
  • Anyone acting under the direction or control of your attending practitioner.

A seventh limit is a cap rather than a bar: "No more than one such witness may be the principal's health or residential care provider or such provider's employee." So a nursing-home resident may use one staff member as a witness and needs a second witness from outside. Your witnesses also affirm that you appeared to be of sound mind and free from duress, and that you affirmed awareness of the document and signed it freely.

Sign in person. The disclosure statement puts it plainly: "You must sign this form in the physical presence of 2 witnesses or a notary or justice of the peace for it to be valid." If you are physically unable to sign, RSA 137-J:14, II lets another person sign your name, but only in your physical presence and at your express direction.

One statutory step gets skipped constantly. RSA 137-J:13, I says every person wishing to execute an advance directive "shall be provided with a disclosure statement substantially in the form set forth in RSA 137-J:19 prior to execution," and paragraph II says the directive itself shall be substantially in the RSA 137-J:20 form. The signature block then recites that you received, reviewed, and understood the disclosure. A New Hampshire package that arrives without that disclosure statement is missing a piece the statute asks for.

When Your Agent's Authority Switches On

Every New Hampshire health care agency is springing. RSA 137-J:5, II says the authority "shall be in effect only when the principal lacks capacity to make health care decisions, as certified in the principal's medical record by the principal's attending practitioner," and it requires your agent's name to be recorded in that same medical record. The RSA 137-J:20 form offers no box to make an agent effective immediately, so do not carry that option over from another state.

One certifier is enough here, and the certifier may be a physician associate or an APRN rather than a physician. RSA 137-J:7, I(c) tells the clinician to take the necessary steps "without delay" to put that written verification in the record.

Recovery reverses it. When you regain capacity, the practitioner certifies that in the record, your agent's authority terminates, and decision-making reverts to you. A later certified loss of capacity revives it.

RSA 137-J:5, III adds a route for people who have no attending practitioner because of their religious or moral beliefs. The directive may name someone else to certify the lack of capacity in writing, acknowledged before a notary or justice of the peace, and that person may not be the agent or anyone ineligible to serve as agent.

The Living Will Runs on a Different Trigger

RSA 137-J:2, XVII buries the living will's operating condition inside its definition, which is why authors miss it. A living will is a written statement of guidance about life-sustaining treatment that applies "when the principal has been diagnosed and certified in the principal's medical record by 2 attending physicians or a physician and another attending practitioner who is not under the supervision of the certifying physician to have lost capacity to make health care decisions and to be permanently unconscious or to suffer from an advanced life-limiting, incurable and progressive condition for which treatment has become excessively burdensome or ineffective for the principal."

Count the certifiers. Your agent's authority turns on one attending practitioner. Your living will turns on two, and the second one may not be supervised by the first. A page that states a single certification for the whole advance directive is wrong about half of it.

Know what counts as life-sustaining treatment, because RSA 137-J:2, XVI draws a line people assume differently. The term covers medically administered nutrition and hydration, mechanical respiration, kidney dialysis, other external mechanical or technological devices, and may include blood-pressure drugs, transfusions, and antibiotics. It excludes the administration of medication, natural ingestion of food or fluids by eating and drinking, and any procedure needed to provide comfort or relieve pain. Your agent can never stop you from eating and drinking as you want.

The living will has to be written. RSA 137-J:2, XVII says "written statement of guidance," and New Hampshire supplies no oral version. Wishes you say out loud still count, through a different door: RSA 137-J:6 requires your agent or surrogate to act on your wishes and your religious or moral beliefs "as stated orally, in writing ... or otherwise communicated," and to fall back on your best interests and accepted medical practice only when those wishes are unknown.

Your Agent Outranks Your Living Will

New Hampshire resolves a clash between the two halves in favor of the living decision-maker. RSA 137-J:21, II says that to the extent a durable power of attorney for health care conflicts with a terminal care document or living will, "the durable power of attorney for health care shall control." Several states run this the other way and let the written instruction override the agent, so check the rule rather than the habit.

A guardianship does not automatically displace your agent either. Under RSA 137-J:21, I, the probate court considers on motion whether an agent's authority should be suspended or revoked, and takes your expressed preferences into account. In that consideration "the advance directive and agent appointed shall be presumed to be in the best interest of the principal and valid, absent clear and convincing evidence to the contrary." A signed directive is the cheapest way to head off a fight over guardianship of an incapacitated adult in New Hampshire.

If You Name Nobody: The Surrogate List

Skip Part I and New Hampshire fills the gap without a courtroom. RSA 137-J:35, I tells the attending practitioner to first ask whether you have a valid durable power of attorney for health care and whether that agent is available, willing, and able to act. Only when no agent is authorized and available does the search move to a surrogate, "in the following order of priority":

  1. Your spouse, or civil union partner or common law spouse as defined by RSA 457:39, unless a divorce proceeding, separation agreement, or restraining order limits that relationship.
  2. Any adult son or daughter.
  3. Either parent.
  4. Any adult brother or sister.
  5. Any adult grandchild.
  6. Any grandparent.
  7. Any adult aunt, uncle, niece, or nephew.
  8. A close friend.
  9. The agent with financial power of attorney, or a conservator appointed under RSA 464-A.
  10. The guardian of your estate.

Two features of that list are New Hampshire's own. A close friend is a defined role with paperwork attached: RSA 137-J:2, IX requires a person 18 or older to present an affidavit to the attending physician stating the friendship, the willingness to become involved, and regular enough contact to know the patient's activities, health, and religious and moral beliefs, plus the facts that demonstrate it. That friend then outranks the holder of your financial power of attorney and the guardian of your estate. Grandparents also sit above aunts, uncles, nieces, and nephews here, which is the reverse of several nearby states.

The surrogacy starts when the decision-maker's name goes into the medical record, and RSA 137-J:36, II adds the surrogate's address, telephone number, and relationship. When two people in the same tier disagree, a majority of the available people in that tier controls, unless someone starts a guardianship under RSA 464-A. Once a guardianship petition is filed and a decision is pending, no surrogate is recognized.

Now the fact that decides whether the surrogate route is enough. RSA 137-J:37, V lets a surrogate act to the same extent as an agent "for up to 180 days after being identified," and terminates that authority at 180 days unless the patient is determined to be actively dying. It also ends earlier if capacity returns or a guardian is appointed. Most states put no clock on a default surrogate. New Hampshire does, so a long-term incapacitated patient with no agent ends up in a guardianship anyway. Naming your own agent is what avoids that.

You keep a veto while you can speak. RSA 137-J:37, I says a surrogate may not be identified over your express objection, and a surrogacy terminates whenever you object to its continuation.

A DNR or POLST Is a Separate Document

The disclosure statement draws this boundary itself: the advance directive "is not a medical order (e.g., it is not in and of itself a DNR (do not resuscitate order or (POLST))." A directive is a plan for later. A do not resuscitate order and a POLST are present-tense medical orders signed by an attending practitioner.

RSA 137-J:26, I lets an attending practitioner issue a DNR order once you, or your agent or surrogate, consent. Portable DNR and POLST forms that indicate Do Not Resuscitate are transferable, valid medical orders throughout the state, and a POLST counts as a DNR when it states that no separate DNR order will be required. Paragraph IV supplies a narrow route when no agent or surrogate can be reached: a practitioner may write the order for a patient who lacks capacity, is actively dying, and is admitted to a facility, if a second practitioner who has personally examined the patient concurs that resuscitation would be contrary to accepted medical standards and would cause unnecessary harm.

Absent one of the conditions in RSA 137-J:25, everyone is presumed to consent to cardiopulmonary resuscitation. If you want emergency responders to hold back, ask your clinician about a DNR order or a POLST rather than relying on the directive alone.

Changing or Revoking It

RSA 137-J:15, I gives you a wide set of exits:

  • A written revocation signed and dated by you, delivered to your agent or surrogate or to a health care or residential care provider.
  • An oral revocation in front of 2 or more witnesses, none of whom may be a person disqualified from witnessing under RSA 137-J:14, I(a).
  • Burning, tearing, or obliterating the document, or having someone do that at your direction and in your physical presence, or any other act showing a specific intent to revoke.
  • Executing a later advance directive.
  • Filing an action for divorce, legal separation, annulment, or a protective order where both you and the agent or surrogate are parties.

That last one turns on the filing, not on a final decree, and it is gentler than it looks. Where you named an alternate agent, only the primary designation falls and the alternate designation becomes effective. Re-executing the directive or giving written re-affirmation after the filing restores your original primary agent.

Timing belongs to the medical record. RSA 137-J:15, II says revocation "shall become effective upon communication to the attending practitioner," and requires a provider who receives one to record it with the time and date and notify your agent, your attending practitioner, and the staff responsible for your care.

Where the Document Actually Lives

New Hampshire runs no state registry for advance directives. All 37 sections of RSA 137-J create none, so storage is a private matter plus the chart. RSA 137-J:7, I(a) requires your practitioner or provider, on your request, to make the directive or a copy part of your medical record, and I(b) requires anyone holding an executed directive or a revocation to deliver it once your circumstances may make it applicable.

Two carry-over rules save people from redoing paperwork. RSA 137-J:17 makes a DNR, POLST, durable power of attorney for health care, living will, or similar document executed in another state, and valid where it was executed, "as effective in this state as it would have been if executed according to the laws of this state." And RSA 137-J:16 preserves any advance directive validly executed under prior New Hampshire law, so a directive signed before this chapter took effect on January 1, 2007 stays enforceable.

A Signing Sequence

Use this order as a starting checklist, then confirm the details with a New Hampshire attorney or your own clinician.

  1. Read the RSA 137-J:19 disclosure statement first. The statute treats it as a step, not a cover sheet.
  2. Choose an agent and an alternate, ask them both, and check that neither is your attending practitioner or a nonrelative employee of your provider.
  3. Write any limits into Part I, including whether your agent may consent to a clinical trial.
  4. Complete Part II if you want a living will, and attach extra pages titled as the form directs when the choices there do not fit.
  5. Sign Part III in the physical presence of either two qualified witnesses or one notary public or justice of the peace.
  6. Ask your provider to put the directive in your medical record, and hand signed copies to your agent, your clinicians, and your attorney.
  7. Ask your clinician about a DNR order or POLST separately if you want a standing instruction to emergency responders.
  8. Revisit the directive after a marriage, a divorce filing, a serious diagnosis, or a move, and replace old copies every time you change it.

A directive covers your body. Money and property need the separate financial document under RSA 564-E, covered in the New Hampshire power of attorney guide. See what else to sign for how the two fit with a will and beneficiary designations, and read New Hampshire will requirements before you sign anything testamentary. The rest of the state's pages start at the New Hampshire probate and estate directory.

This page is general information about incapacity planning in New Hampshire. RSA 137-J and the official New Hampshire Revised Statutes Annotated control. Confirm anything that affects your own care with a licensed New Hampshire attorney or your clinician before you sign or rely on a directive.

Sources:

It is not legal advice.

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Settled Estate is not a law firm and does not give legal advice.

Information current as of August 3, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in New Hampshire can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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