Default Health-Care Surrogate Priority in New Hampshire

At a glance

Requirements one by one

When the default route opens

The attending practitioner certifies in the medical record that the patient lacks health-care decision capacity (§ 137-J:2, § 137-J:7(I)(c)). The practitioner reasonably checks for a valid health-care power of attorney and whether its agent is available, willing, and able to act. Only after the authorized agent and a legal guardian are unavailable or unable or unwilling does the practitioner identify a surrogate (§ 137-J:35(I)–(II)).

Care or setting covered

“Health care decision” includes consent, refusal, or withdrawal of consent for care, treatment, admission to a facility, or services affecting physical or mental health, subject to other legal restrictions (§ 137-J:2). The surrogate statute is not limited to one facility type.

Family and other eligible people

The order in § 137-J:35(I) is spouse, civil union partner, or qualifying common-law spouse, subject to the stated divorce, separation, and restraining-order exclusions; adult child; parent; adult sibling; adult grandchild; grandparent; and adult aunt, uncle, niece, or nephew. A close friend comes next, followed by a financial-power-of-attorney agent or conservator, then an estate guardian. A close friend must submit an affidavit describing regular contact, familiarity with the patient’s life and beliefs, and willingness to participate (§ 137-J:2(IX)).

Decision within one class

People at the same rank make reasonable efforts to agree. If two or more tell the practitioner they disagree, a majority of the available people in that category controls unless the minority or another interested party begins guardianship proceedings. While that case is pending, there is no recognized surrogate; patient care is not preempted (§ 137-J:36(I)).

Who is available and eligible

A surrogate is a capable, available, willing adult whom the practitioner identifies after reasonable inquiry (§ 137-J:2). The practitioner records the identified person’s name, address, phone number, and relationship; someone unavailable or unwilling can be replaced through the same selection process (§ 137-J:36(II)–(III)). A newly available and willing higher-priority person may be substituted (§ 137-J:36(IV)).

Decisions limited or excluded

A surrogate cannot be identified over the patient’s express objection, and an existing surrogacy ends if the patient objects to its continuation (§ 137-J:37(I)). The surrogate’s authority lasts up to 180 days after identification, ending sooner on recovered capacity or guardian appointment; the 180-day termination does not apply if the patient is determined actively dying (§ 137-J:37(V)). “Actively dying” requires the stated medical certification in the patient’s record (§ 137-J:2(I)).

No surrogate or disputed authority

A challenge to the surrogate’s priority, ability, or life-sustaining-treatment decision may proceed through guardianship under RSA 464-A (§ 137-J:36(IV)). With no guardian, health-care agent, or surrogate, the practitioner may initiate or encourage guardianship but is not required to do so (§ 137-J:37(III)). The practitioner is also not required to identify a surrogate (§ 137-J:37(II)).

What trips people up

Starting guardianship after a same-class dispute pauses recognition of the surrogate while the case is pending; § 137-J:36(I) expressly says this process does not preempt patient care. The rule differs from a simple permanent tie-breaker.

Common questions

Can a close friend serve ahead of a grandparent?

The statute places grandparents before adult aunts, uncles, nieces, and nephews, and all of those classes before a close friend (§ 137-J:35(I)(f)–(h)).

Does a surrogate keep authority indefinitely?

No. The ordinary limit is 180 days from identification, unless the patient is determined actively dying. Capacity recovery or appointment of a guardian ends authority sooner (§ 137-J:37(V)).

Statutes and sources

• N.H. Rev. Stat. §§ 137-J:2, :7, :35–:37 — definitions, capacity documentation, surrogate order, same-rank choices, and duration: https://gc.nh.gov/rsa/html/X/137-J/137-J-mrg.htm (accessed 2026-10-08). The statute entries above link each focused current section.