Living Will and Advance Health-Care Instruction Requirements in New Hampshire
At a glance
| Governing law and document | RSA ch. 137-J. 'Advance directive' combines durable health-care POA and living will; either/both may be completed (§§ 137-J:1(IV), :2(II), :20). Person must receive substantially prescribed disclosure and directive must substantially follow § 137-J:20 form (§ 137-J:13). Living will is written guidance, not a DNR/POLST order |
|---|---|
| Who may make an instruction | Principal age 18+ with capacity (§ 137-J:2(VI), (XXIII)). Capacity means understanding/appreciating nature and consequences, significant benefits/harms, and reasonable alternatives. If physically unable, another signs principal's name at express direction in principal's physical presence (§ 137-J:14(II)) |
| Oral, written, and signature form | Written advance directive substantially following § 137-J:20; statutory form is dated and signed (§§ 137-J:2(XVII), :13, :20). Principal signs in physical presence of execution officer/witnesses; no oral creation route and no electronic-specific execution route. Directed signature allowed only for physical inability (§ 137-J:14) |
| Witness, notary, and disqualifications | Choose 2+ subscribing witnesses OR notary OR justice of peace (§ 137-J:14(I)). Witnesses cannot be agent/surrogate, spouse, heir, named property taker, attending practitioner, or person under practitioner's direction/control; no more than 1 may be provider/provider employee. Witnesses affirm sound mind, no duress, awareness, voluntariness |
| Covered conditions and trigger | Two attending physicians, OR physician plus another attending practitioner not supervised by certifying physician, certify in medical record lost capacity plus permanent unconsciousness OR advanced life-limiting incurable progressive condition with treatment excessively burdensome/ineffective (§ 137-J:2(XVII)). Form also lists active dying, permanent unconsciousness, and burdens-over-benefits as burden examples (§ 137-J:20) |
| Treatment, nutrition, hydration, and comfort | Form chooses all life-sustaining attempts OR only treatment not excessively burdensome and with reasonable hope of benefit; may cross out listed burden situations (§ 137-J:20). Life-sustaining treatment includes tube/IV nutrition/hydration, respiration, dialysis, devices, pressure drugs, transfusions, antibiotics; excludes comfort/pain medication and natural eating/drinking (§ 137-J:2(XVI), (XVIII)) |
| Pregnancy and other statutory limits | No withholding during pregnancy unless attending practitioner + examining obstetrician certify treatment will not permit continuing fetal development/live birth, OR will physically harm principal, OR prolong severe pain not alleviable by medication (§ 137-J:10(II)(a)). Chapter does not authorize suicide, assisted suicide, mercy killing, euthanasia, or deliberate life-ending act beyond natural dying (§ 137-J:10(I)) |
| Revocation, notice, and registry | Revoke by signed/dated writing delivered to agent/surrogate/provider; oral revocation before 2 qualified witnesses; directed destruction/other specific-intent act; or later directive (§ 137-J:15(I)). Effective when communicated to attending practitioner; provider immediately records/notifies care team (§ 137-J:15(II)). Divorce/separation/annulment/protective-order filing addresses agent designation, not treatment guidance. No statutory registry filing |
| Provider duties, recognition, and effect | Providers follow directive within responsible practice, add it to record on request, promptly verify incapacity, and arrange transfer for conscience refusal while preserving interim life-saving care (§ 137-J:7); good-faith/reasonable-standard compliance is immune (§ 137-J:12). Foreign living will valid where made is effective subject to NH limits (§ 137-J:17). If living will conflicts with health-care POA component, POA controls (§ 137-J:21(II)) |
New Hampshire's RSA chapter 137-J combines a durable power of attorney for health care and a living will in one advance-directive form. A person may complete either or both components. The living will gives written treatment guidance; it is not itself a DNR or POLST medical order.
Requirements one by one
The statutory disclosure and form are part of execution
Under § 137-J:13, anyone executing an advance directive must first receive the substantially prescribed disclosure, and the directive must substantially follow § 137-J:20. The principal is age 18 or older and must have capacity to understand and appreciate the decision's nature, consequences, significant benefits and harms, and reasonable alternatives (§ 137-J:2(VI), (XXIII)).
The principal signs in the physical presence of two subscribing witnesses, a notary, or a justice of the peace (§ 137-J:14). If physically unable, a directed signer may write the principal's name in the principal's physical presence.
The witness route has a detailed screen. Neither witness may be the agent, surrogate, spouse, heir, named property taker, attending practitioner, or a person under that practitioner's direction or control. No more than one may be the principal's health or residential provider or its employee.
Two independent practitioners certify the trigger
The living-will definition in § 137-J:2(XVII) requires medical-record certification by two attending physicians, or by a physician and another attending practitioner not under the certifying physician's supervision. They certify both loss of capacity and either permanent unconsciousness or an advanced life-limiting, incurable, progressive condition for which treatment has become excessively burdensome or ineffective.
The form's burden examples include active dying, permanent unconsciousness without reasonable hope of recovery, and an advanced condition for which likely risks and burdens outweigh expected benefits (§ 137-J:20).
The form uses a burdens-and-benefits choice
The principal chooses between all attempts at life-sustaining treatment within accepted standards and a limit to treatment that is not excessively burdensome and has reasonable hope of benefit. The principal may cross out listed burden examples and add personal situations.
Life-sustaining treatment includes medically administered nutrition and hydration, mechanical respiration, dialysis, external devices, blood-pressure drugs, transfusions, and antibiotics. It excludes comfort and pain procedures and natural eating or drinking (§ 137-J:2(XVI), (XVIII)). The living-will form explains that stopping medically administered nutrition and hydration may be part of comfort-focused care when the treatment is excessively burdensome.
Pregnancy has a specific two-clinician exception
Under § 137-J:10(II)(a), life-sustaining treatment may not be withheld from a pregnant principal unless the attending practitioner and an obstetrician who examined the principal certify that treatment will not permit continuing fetal development and live birth, will physically harm the principal, or will prolong severe pain that medication cannot alleviate.
The chapter also states that withholding or withdrawal under the Act is not suicide or murder and does not authorize suicide, assisted suicide, mercy killing, euthanasia, or a deliberate life-ending act beyond natural dying (§ 137-J:10(I)).
Revocation needs one of the statutory routes
Under § 137-J:15, the principal may revoke through a signed and dated writing delivered to the agent, surrogate, or provider; an oral statement before two people qualified to witness execution; directed destruction or another act showing specific intent; or a later advance directive. Revocation becomes effective when communicated to the attending practitioner, and the provider records and circulates notice to the care team.
The divorce, separation, annulment, and protective-order filing rule addresses the primary agent designation and any alternate. It does not erase the living will's treatment guidance. Chapter 137-J states no registry filing requirement.
Providers follow the directive or arrange transfer
§ 137-J:7 requires providers to follow applicable directions within responsible medical practice, place a copy in the record on request, and promptly verify incapacity when the directive may apply. A conscience objector must arrange transfer without delay and may not withhold interim treatment whose denial would hasten death against the principal's expressed wishes.
Good-faith action within reasonable medical standards receives the immunity in § 137-J:12. A living will valid in another state is effective in New Hampshire subject to chapter 137-J's limits (§ 137-J:17).
What trips people up
- Witnesses must see the signature. The witness route requires signing in their physical presence; acknowledgment belongs to the notary or justice of the peace route.
- The trigger is not simply “near death.” It requires loss of capacity and the statute's permanent-unconsciousness or advanced-condition findings, certified by two independent practitioners.
- Natural eating and drinking are not life-sustaining treatment. The form can address tube or IV nutrition and hydration, but the statute separates those from eating and drinking.
- The agent can override a conflicting living will. If the durable-power component conflicts with the living-will component, § 137-J:21(II) says the durable power of attorney for health care controls.
Common questions
Can I use a notary instead of witnesses? Yes. A notary or justice of the peace is an alternative to two subscribing witnesses under § 137-J:14.
May one witness work for my care provider? Yes, but no more than one witness may be the provider or its employee.
Will New Hampshire honor a living will signed elsewhere? Yes, if it was valid where executed, subject to New Hampshire's substantive limits (§ 137-J:17).
Is the advance directive itself a DNR order? No. The mandatory disclosure in § 137-J:19 says it is not, by itself, a DNR or POLST medical order.
Statutes and sources
- RSA 137-J:2 — capacity, living-will trigger, life-sustaining treatment, nutrition/hydration, and age definitions. New Hampshire General Court (accessed 2026-08-13).
- RSA 137-J:7, :10, and :12 — provider duties and transfer, pregnancy and criminal-act limits, and immunity. Same official source (accessed 2026-08-13).
- RSA 137-J:13 through :15 — required disclosure/form, execution routes, witnesses, directed signing, and revocation. Same official source (accessed 2026-08-13).
- RSA 137-J:17 — out-of-state recognition. Same official source (accessed 2026-08-13).
- RSA 137-J:19 and :20 — disclosure and living-will form choices. Same official source (accessed 2026-08-13).
- RSA 137-J:21 — health-care POA controls a conflicting living will. Same official source (accessed 2026-08-13).
Source links
Every statute quoted above, linked, with the date we checked it.
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