Healthcare Power of Attorney

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

(New Hampshire – RSA 137-J–Compliant)

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Operative Provisions
4. Representations & Warranties
5. Covenants & Restrictions
6. Default & Remedies
7. Risk Allocation
8. Dispute Resolution
9. General Provisions
10. Execution Block

1. DOCUMENT HEADER

1.1 Title
 Durable Power of Attorney for Health Care (the “Directive”).

1.2 Parties
 a. Principal: [PRINCIPAL FULL LEGAL NAME], residing at [ADDRESS] (“Principal”).
 b. Primary Agent: [AGENT FULL LEGAL NAME], residing at [ADDRESS] (“Agent”).
 c. First Alternate Agent (optional): [ALTERNATE 1 NAME], residing at [ADDRESS].
 d. Second Alternate Agent (optional): [ALTERNATE 2 NAME], residing at [ADDRESS].

1.3 Recitals
 A. Principal desires to ensure that health-care decisions are made in accordance with Principal’s wishes if Principal lacks capacity.
 B. This Directive is executed pursuant to RSA 137-J and shall be durable as defined therein.
 C. Consideration is acknowledged by the mutual promises herein.

1.4 Effective Date; Durability
 This Directive becomes effective upon the Principal’s incapacity, as defined in RSA 137-J:2, I(b), and shall remain in effect until revoked pursuant to Section 3.10.

1.5 Governing Law
 This Directive shall be governed by the health-care laws of the State of New Hampshire.

2. DEFINITIONS

For ease of reference, capitalized terms have the meanings set forth below:

“Advance Decision” – Any expression of Principal’s treatment preferences contained in Section 3.5.
“Agent” – The individual authorized to make Health-Care Decisions on behalf of the Principal.
“Capacity” – The ability to understand and appreciate the nature and consequences of a health-care decision, consistent with RSA 137-J:2, I(b).
“Health-Care Decision” – Any decision regarding the Principal’s medical treatment, placement, service, or procedure, including the withholding or withdrawal of life-sustaining treatment.
“HIPAA” – The Health Insurance Portability and Accountability Act of 1996 and its implementing regulations.
“In Good Faith” – With honest intent, without negligence, and in conformance with the Principal’s known wishes or best interests where wishes are unknown.
“Life-Sustaining Treatment” – Medical treatment that will serve only to prolong the process of dying or maintain the Principal in a condition of permanent unconsciousness.
“Permanent Unconsciousness” – A medical condition defined in RSA 137-J:2, X.

3. OPERATIVE PROVISIONS

3.1 Appointment of Agent
 The Principal hereby appoints the Agent to make all Health-Care Decisions for the Principal if the Principal lacks Capacity.

3.2 Scope of Authority
 a. General Powers: The Agent may give informed consent, refuse consent, or withdraw consent to any medical treatment.
 b. Placement & Transfer: The Agent may select and discharge healthcare facilities.
 c. Access to Records: The Agent may obtain, review, and disclose medical records.
 d. Mental-Health Treatment: Authority extends to mental-health decisions unless limited herein.
 e. Restrictions (optional): [INSERT ANY LIMITATIONS].

3.3 HIPAA Authorization
 Pursuant to 45 C.F.R. § 164.502(g), the Principal authorizes any Covered Entity to disclose protected health information to the Agent to the same extent as the Principal.

3.4 End-of-Life Decisions
 a. Terminal Condition: If I am near death and treatment would only prolong dying, I direct my Agent to [WITHHOLD/WITHDRAW] life-sustaining treatment.
 b. Permanent Unconsciousness: If I am in a state of permanent unconsciousness, I direct my Agent to [WITHHOLD/WITHDRAW] life-sustaining treatment.
 c. Artificial Nutrition/Hydration: [GRANT / WITHHOLD] authority to withhold artificial nutrition and hydration.

3.5 Specific Instructions (Optional)
 [TEXT OF ADVANCE DECISION OR ATTACH SCHEDULE A].

3.6 Organ & Tissue Donation (Optional)
 I [DO / DO NOT] authorize anatomical donation under RSA 291-A.

3.7 Nomination of Guardian
 If a court appoints a guardian, I nominate my Agent. No guardian shall have authority to revoke this Directive absent court order per RSA 137-J:10.

3.8 Reliance by Third Parties
 Any person, facility, or physician may rely in good faith on the Agent’s representations without liability.

3.9 Duration
 This Directive is durable and survives the Principal’s disability.

3.10 Revocation
 Principal may revoke this Directive at any time by: (a) written revocation; (b) oral expression in presence of two witnesses; or (c) execution of a subsequent directive.

4. REPRESENTATIONS & WARRANTIES

4.1 Principal
 a. Capacity: Principal affirms being of sound mind and over 18 years of age.
 b. Voluntary Execution: Execution is voluntary and free from duress.

4.2 Agent
 a. Eligibility: Agent is not disqualified under RSA 137-J:5.
 b. Acceptance: Agent accepts the appointment and will act in Good Faith.

4.3 Survival
 These representations survive the execution of this Directive.

5. COVENANTS & RESTRICTIONS

5.1 Agent’s Fiduciary Duties
 a. Good Faith; Substituted Judgment.
 b. Consultation with Health-Care Providers and family as practicable.
 c. Documentation: Maintain contemporaneous records of material decisions.

5.2 Duty to Disclose
 Agent shall provide reasonable updates to interested persons upon request unless contrary to Principal’s wishes.

5.3 Prohibited Acts
 Agent shall not:
 i. Authorize psychosurgery or involuntary commitment absent court order;
 ii. Act for remuneration, except reimbursement of expenses;
 iii. Override any explicit limitation in this Directive.

6. DEFAULT & REMEDIES

6.1 Events of Default
 a. Agent unavailability, incapacity, or resignation;
 b. Agent breaching fiduciary duty or acting outside scope;
 c. Judicial revocation under RSA 137-J:20.

6.2 Cure & Replacement
 Agent shall have 48 hours after notice from an interested person to cure any alleged breach. Failing cure, decision-making authority passes to the next Alternate Agent.

6.3 Enforcement
 Interested persons may petition the New Hampshire probate court for injunctive relief or appointment of a guardian.

6.4 Attorneys’ Fees
 The prevailing party in any enforcement action may recover reasonable attorneys’ fees and costs.

7. RISK ALLOCATION

7.1 Indemnification of Agent
 The Principal agrees to indemnify and hold harmless the Agent from any liability arising from Health-Care Decisions made In Good Faith.

7.2 Limitation of Liability
 The Agent shall not be liable for acts or omissions made In Good Faith and in accordance with this Directive and RSA 137-J.

7.3 Insurance (Optional)
 [If desired, insert provision requiring the Agent to be covered under the Principal’s liability insurance.]

7.4 Force Majeure
 No party shall be liable for failure to perform an obligation where performance is impossible due to an unforeseen event beyond reasonable control (e.g., natural disaster, war, or pandemic).

8. DISPUTE RESOLUTION

8.1 Governing Law
 This Directive and any dispute hereunder shall be construed in accordance with the substantive laws of the State of New Hampshire.

8.2 Forum Selection
 Exclusive jurisdiction and venue shall lie in the [COUNTY] Probate Court of New Hampshire.

8.3 Arbitration
 Arbitration is expressly disclaimed and shall not apply.

8.4 Jury Waiver
 Not applicable.

8.5 Injunctive Relief
 Nothing herein limits any party’s right to seek injunctive relief to enforce healthcare directives.

9. GENERAL PROVISIONS

9.1 Amendments & Waivers
 Must be in writing, signed by the Principal, and attested in the same manner as original execution.

9.2 Assignment
 Authority granted herein is personal and may not be assigned or delegated by the Agent except to an Alternate Agent as provided.

9.3 Severability
 If any provision is held unenforceable, the remainder shall be given full effect consistent with Principal’s intent.

9.4 Entire Agreement
 This Directive constitutes the entire healthcare power of attorney of the Principal.

9.5 Copies & Electronic Signatures
 Photocopies or electronic copies have the same legal effect as the original. Electronic signatures are permitted to the extent allowed under RSA 294-E.

9.6 Counterparts
 This Directive may be executed in multiple counterparts, each deemed an original.

10. EXECUTION BLOCK

10.1 Principal’s Signature

_____________________________   Date: _____________
[PRINCIPAL NAME]

10.2 Agent’s Acceptance

I, [AGENT NAME], accept my appointment as Agent and agree to act in Good Faith and pursuant to the Principal’s wishes.

_____________________________   Date: _____________
[AGENT NAME]

10.3 Alternate Agent Acceptance (optional)

_____________________________   Date: _____________
[ALTERNATE 1 NAME]

_____________________________   Date: _____________
[ALTERNATE 2 NAME]

OPTION A – NOTARIZATION

State of New Hampshire
County of ☐

On this _____ day of __________, 20__, before me, the undersigned Notary Public, personally appeared [PRINCIPAL NAME], known to me or satisfactorily proven to be the person whose name is subscribed to this instrument, and acknowledged that (he/she) executed the same for the purposes herein contained.

_____________________________
Notary Public
My Commission Expires: __________

OPTION B – TWO WITNESSES

We declare under penalty of perjury that we are at least 18 years old, not the Agent, Alternate Agent, or spouse of either, not entitled to any portion of the Principal’s estate, and not directly involved in the Principal’s care. We witnessed the Principal sign this Directive (or the Principal’s acknowledgment of signature) and affirm that the Principal appeared to be of sound mind and free from duress.

Witness #1: _____________________________
Name: __________________________________
Address: ________________________________
Date: _____________

Witness #2: _____________________________
Name: __________________________________
Address: ________________________________
Date: _____________