§ 137-J:5 — Scope and Duration of Agent's and Surrogate's Authority

New Hampshire § 137-J:5

• Jurisdiction: New Hampshire
• Title X: PUBLIC HEALTH
• Ch. 137-J: WRITTEN DIRECTIVES FOR MEDICAL DECISION MAKING FOR ADULTS WITHOUT CAPACITY TO MAKE HEALTH CARE DECISIONS
• Subdivision: Advance Directives

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I. Subject to the provisions of this chapter and any express limitations set forth by the principal in a durable power of attorney for health care, the agent or surrogate shall have the authority to make any and all health care decisions on the principal's behalf that the principal could make.
II. An agent's authority under a durable power of attorney for health care or a surrogate's authority shall be in effect only when the principal lacks capacity to make health care decisions, as certified in the principal's medical record by the principal's attending practitioner. The name of the agent or surrogate shall be indicated in the principal's medical record. When and if the principal regains capacity to make health care decisions, such event shall be certified in the principal's medical record by the principal's attending practitioner, the agent's or surrogate's authority shall terminate, and the authority to make health care decisions shall revert to the principal.
III. If the principal has no attending practitioner for reasons based on the principal's religious or moral beliefs as specified in the principal's advance directive, the advance directive may include a provision that a person designated by the principal in the advance directive may certify in writing, acknowledged before a notary or justice of the peace, as to the principal's lack of capacity to make health care decisions. The person so designated by the principal shall not be the agent, or a person ineligible to be the agent.
IV. The principal's attending practitioner shall make reasonable efforts to inform the principal, even if the principal has lost capacity, of any proposed treatment, or of any proposal to withdraw or withhold treatment. When the principal has lost capacity to make health care decisions and an agent or surrogate is acting on the principal's behalf, and the agent or surrogate consents to treatment or withholding of treatment from the principal, such treatment may be given or withheld even over the principal's objection, unless the principal's durable power of attorney for health care provides otherwise.
IV-a. Consent to clinical trials or experimental treatments. Agents and surrogates shall have the authority to consent to clinical trials or experimental treatments pursuant to the following:
(a) The clinical trial or experimental treatment must be authorized by an institutional review board and be consistent with the relevant state and federal regulations, including 45 CFR part 46, subpart A (the "Common Rule"), and 21 CFR parts 50 and 56, as applicable.
(b) An agent or surrogate may only give consent that is consistent with authority granted in a durable power of attorney for health care. If the durable power of attorney for health care does not address authority to give consent to a clinical trial or experimental treatment, the agent or surrogate may only give consent that is consistent with the authority provided in subparagraph (c).
(c) Absent a limitation in a durable power of attorney for health care, an agent or surrogate may give consent to clinical trials or experimental treatment as follows:
(1) For purposes of this subsection, "immediately life-threatening diseases or conditions" are diseases or conditions that are likely to cause death if treatment is not provided promptly. When there is an immediately life-threatening disease or condition, consent may be given if:
(A) There is no alternate method of approved or generally recognized therapy available that provides an equal or greater likelihood of saving the life of the patient or preventing a permanent or extended impairment of function that is likely to substantially limit one or more major life activities, or
(B) The clinical trial or experimental treatment is not intended to save the life of the patient but rather is intended to be beneficial to the patient in terms of increasing mobility or reducing pain, distress, or discomfort.
(2) For purposes of this subsection, "serious diseases or conditions" are diseases or conditions that, if left untreated, are likely to result in a permanent or extended impairment of function that is likely to substantially limit one or more major life activities. When there is a serious disease or condition, consent may be given if:
(A) There is no alternate method of approved or generally recognized therapy that is available, and
(B) The clinical trial or experimental treatment is intended to prevent or diminish a permanent or extended impairment of function that is likely to substantially limit one or more major life activities, and such impairment is likely to occur if not treated promptly, or be beneficial to the patient in terms of increasing mobility or reducing pain, distress, or discomfort that is likely to substantially limit a major life activity.
V. Nothing in this chapter shall be construed to give an agent or surrogate authority to:
(a) Consent to voluntary admission to any state institution;
(b) Consent to a voluntary sterilization;
(c) Consent to withholding life-sustaining treatment from a pregnant principal, unless, to a reasonable degree of medical certainty, as certified in the principal's medical record by the attending practitioner and an obstetrician who has examined the principal, such treatment or procedures will not maintain the principal in such a way as to permit the continuing development and live birth of the fetus or will be physically harmful to the principal or prolong severe pain which cannot be alleviated by medication; or
(d) Consent to psychosurgery or electro-convulsive shock therapy.

Legislative History

2006, 302:2. 2009, 54:4. 2014, 239:5, eff. Jan. 1, 2015. 2020, 39:5, eff. July 1, 2021; 39:29, eff. Jan. 1, 2021. 2021, 176:2, eff. July 1, 2021 and July 30, 2021.