NH Elder Law and Estate Planning

Planning For Disability


Medical Advance Directives ~ Living Will and Health Care Power of Attorney

 Do Not Resuscitate Orders

 Financial Advance Directive


 

 

What happens if you are temporarily or permanently unable to handle your financial affairs?  Who will make decisions about your health care if you are unable to communicate?  Do you want to be kept alive by artificial means if there is no hope for your recovery? Learn more about the comprehensive durable power of attorney, the health care power of attorney, the living will, and  the do not resuscitate order..
 

 


 

The Living Will

(Fillable Form) (Form)

If you are unable to communicate your wishes, this document speaks for you regarding end of life decisions.   It states that you do not want life-sustaining treatment to administered if you have an incurable illness or injury or are permanently unconscious and there is no hope for your recovery.  Your condition must be certified by two health professionals.  You may also indicate in this document that you do not want to be fed or hydrated through artificial means, if this is the only way to allow you to die. 

The Health Care Power of Attorney

 (Fillable Form) (Form)

This document allows you to appoint someone to speak for you regarding your medical care in the event you are unable to speak for yourself.   The agent would make decisions for you, for instance, if you were under anesthesia, temporarily unconscious, or temporarily incapacitated due to a stroke.  The agent would also speak for you if your incapacity were permanent.   You may name a spouse, adult child or a friend.  If you name a health care provider, he or she could not act as your health care provider while acting as your agent.  It is important that the person you name understands your wishes regarding medical treatment, especially end of life treatment.  It is important to have an ongoing dialogue about your wishes and your medical condition with the agent.  And it is important that the person you choose would be able to carry out your wishes.  Many people will find it difficult to request that life support be terminated when a loved one is near death.  Give careful thought to the person you name as agent.  You should also choose an alternate agent.  

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The New Hampshire Bar Association has recently published a guide for people chosen as agent under the health care power of attorney:  Making Medical Decisions for Someone Else

Both the living will and the health care power of attorney require you to indicate if artificial feeding and hydration may be withdrawn if this is the only way to allow you to die.  Many people are uncomfortable imagining this type of death for themselves, or would have trouble requesting that artificial feeding be discontinued.  This is a quote from an article written by By William Lamers, M.D. the Medical Consultant for the Hospice Foundation of America:

 “For persons in the final phase of illness, the withholding of food and fluids is not painful. To the contrary: the administration of food and fluids to dying persons can extend their general discomfort and frustrate their desire to just let go and allow nature to take its course.”

 Visit the Hospice Foundation of America's website for good information on the withholding of nutrition and hydration.

 You should provide your primary care physician and your local hospital with copies of both the Living Will and the Health Care Power of Attorney.  You should also be sure that people you name as agent have copies, and that they know where the originals are kept.  Do not keep the original in a safe deposit box at the bank.  It is best to keep these documents in a fire safe box in your home or at your agent’s home. 

NH adopted a new form of Living Will and Health Care Power of Attorney, effective January 1, 2007.   Documents executed prior to this date are still valid.  DO NOT MAKE ANY CHANGES TO YOUR LIVING WILL OR HEALTH CARE POWER OF ATTORNEY.  If substantive changes need to be made you must execute a new document.  If addresses or telephone numbers have changed, attach a note to the original document, and send a letter to those who have copies of the documents (the hospital, your doctor, your agent) including the new contact information. 

When you travel, you should have a copy of these documents with you.  They will be honored outside of New Hampshire.  However, if you reside outside of the state for a portion of the year, it is wise to execute documents in your other state of residency as well.  In an emergency, it is best that physicians immediately recognize the documents as legally valid.   You may also carry a card in your wallet or purse which indicates that you have executed a living will and who you have named as health care agent under power of attorney. 

You do not need an attorney to prepare these documents.  The language is prescribed by statute.   The documents must be signed by either two witnesses or a notary public.  There are strict witnessing requirements which are set forth in the document.   

Click on the links above for pdf versions of the living will and health care power of attorney.  Also, visit NH Healthy Communities for more information.   For a comprehensive review of the issues associated with , end of life decision making, I encourage you to visit the Hospice Foundation of America's Website.

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Portable Do Not Attempt Resuscitation Orders (DNR)

A portable DNR order is used outside a hospital or  nursing home to tell health care providers that you do not want CPR if  your heart stops beating or you stop breathing.   Unlike the living will or health care power of attorney, the DNR is a medical order written by a physician or advanced registered nurse practitioner (ARNP)  DNRs are requested by people who are certain they are nearing the end of their lives.  If you or someone who has named you agent under power of attorney are receiving hospice care, you will be counseled about the DNR.


Financial Advance Directives ~ The Comprehensive Durable Power of Attorney

A comprehensive durable power of attorney will allow someone (your agent) to act for you in financial matters if you become incapacitated.  Often the document allows the agent to act even when you are not incapacitated.   For instance, if you are unable to attend a real estate closing your agent would be able to sign the paperwork for you.   The agent is required to act only in the interest of the you, the principal.  The agent can not use your money or property for his own benefit. 

You should only name someone you trust as agent.  You will never be required to sign a financial power of attorney against your wishes.  Laws are in place to help reduce the risk of abuse of powers under the document.  For instance, when the agent acts for you he will often be required to sign an acknowledgement which affirms his responsibilities.   Also, the document should begin with the following language:

INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY
THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT YOU SHOULD KNOW THESE IMPORTANT FACTS:


    Notice to the Principal: As the "Principal,' you are using this Durable Power of Attorney to grant power to another person (called the "Agent' or "Attorney in Fact') to make decisions, including, but not limited to, decisions concerning your money, property, or both, and to use your money, property, or both on your behalf. If this written Durable Power of Attorney does not limit the powers that you give to your Agent, your Agent will have broad and sweeping powers to sell or otherwise dispose of your property, and to spend your money without advance notice to you or approval by you. Under this document, your agent will continue to have these powers after you become incapacitated, and unless otherwise indicated your Agent will have these powers before you become incapacitated. You have the right to retain this Power and not to release this Power until you instruct your attorney or any other person who may hold this Power of Attorney to so release it to your Agent pursuant to written instructions. You have the right to revoke or take back this Durable Power of Attorney at any time, so long as you are of sound mind. If there is anything about this Durable Power of Attorney that you do not understand, you should seek professional advice.

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Copyright 2007
Judith Fox
8 Farmwood Rd. Concord, NH 03301
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