What Happens If I Don’t Have an Agent to Make Healthcare Decisions?
January 8, 2015
It may sound like a scene from a soap opera – family members gathered around the hospital bed of an unconscious loved one, arguing about what should be done next. In reality, many New Hampshire residents have found themselves in just that situation only to discover that there was no automatic legal authority for families to take over healthcare decision-making power for a loved one.
Prior to January 1st, this was one of only a handful of states that did not have a “default surrogate consent” statute. Until the enactment this month of the Surrogate Healthcare Decision Maker Law (amending NH-RSA 137-J), the only people who were legally authorized to make decisions for an incapacitated adult were an agent appointed under a Durable Power of Attorney for Health Care (DPOAHC) or a Guardian appointed by the state probate court.
In the middle of health care emergencies, people were shocked to find that they – as a spouse, adult child or other close family member – had no authority under state law to make medical decisions for incapacitated loved ones. Without a DPOAHC in place, families might need to hire an attorney and file for guardianship – a time consuming and costly procedure. Others endured the emotional upheaval that comes when families disagree on what is in the best interests of an incapacitated person.
The state’s new surrogacy law creates a priority list of family members and friends who may legally make healthcare decisions for patients in certain situations for a limited time period when a valid DPOAHC is not in place. The law is intended to ensure that healthcare decisions can be made in a timely manner without court involvement.
The order of priority established under the new law is as follows, in descending order:
· The patient’s spouse, civil union partner or common law spouse;
· Any adult son or daughter of the patient;
· Either parent of the patient;
· Any adult brother or sister of the patient;
· Any adult grandchild of the patient;
· Any grandparent of the patient;
· Any adult aunt, uncle, niece, or nephew of the patient;
· A close friend of the patient;
· The agent with financial power of attorney or conservator;
· The guardian of the patient’s estate.
It’s been nearly 25 years since New Hampshire enacted the law that gave competent adults the right to executive Advance Directives, which include a Living Will and a DPOAHC. For some reason, only about a third of residents have taken advantage of the opportunity.
Decisions about medical treatment (or non-treatment) should be made by each of us for as long as we have the capacity to do so, and by our personally selected and trusted agent when we do not. While the new law helps provide direction when there is no DPOAHC, it is not a perfect solution. It is a stop-gap measure to ease the burden on families in the middle of difficult situations.
Ultimately, advance directives are the best way to ensure that your voice is heard and your healthcare preferences honored. Life is complicated – completing these documents is one way to simplify it.
NOTE: For assistance completing your Advance Directives or for free copies of the documents, contact Visiting Nurse, Home Care & Hospice at 1-800-499-4171 or 356-7006.