New Hampshire: Health Care Power of Attorney Requirements
The short answer
A New Hampshire advance directive must substantially follow the statutory form and be signed in the physical presence of either two qualified witnesses, a notary public, or a justice of the peace. The health care agent acts only after the attending practitioner certifies incapacity.
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This is the general rule in New Hampshire. Ezel applies current New Hampshire law to your specific facts and answers with citations to the statutes.
| Governing law & document | RSA chapter 137-J governs. Its substantially prescribed combined advance-directive form contains a durable power of attorney for health care and a living will; either or both components may be completed (§§ 137-J:1(IV), :13, :20). |
|---|---|
| Who can sign | A person age 18 or older with capacity signs; if physically unable, another person may sign the principal's name at the principal's express direction and in the principal's physical presence (§§ 137-J:2(VI), (XXIII), :14(II)). |
| Witnesses or notary | Sign in the presence of either two or more subscribing witnesses, OR a notary public, OR a justice of the peace. The officer acknowledges the signature; witnesses affirm sound mind, freedom from duress, awareness, and voluntariness (§ 137-J:14). |
| Who can't witness or serve | A witness cannot be the agent/surrogate, spouse, heir, named taker, attending practitioner, or someone under that practitioner's direction/control; at most one witness may be the principal's provider or its employee (§ 137-J:14(I)(a)). The attending practitioner/direct subordinate and an unrelated provider employee cannot act as agent (§ 137-J:8). |
| When the agent can act | Springing only: the agent acts when the attending practitioner certifies incapacity in the medical record, and authority ends when that practitioner certifies restored capacity (§ 137-J:5(II)). A religious/moral-belief exception permits a designated, qualified non-agent to certify incapacity in a notarized or JP-acknowledged writing (§ 137-J:5(III)). |
| Agent's powers & limits | Subject to the directive and chapter, the agent may make any health-care decision the principal could make. The agent cannot block desired eating/drinking, consent to voluntary state-institution admission, sterilization, psychosurgery, electro-convulsive shock therapy, or ordinarily withhold life support during pregnancy (§§ 137-J:2(XIV), (XVI), :5(I), (V), :19). |
| How to revoke | Revoke by signed, dated writing delivered to the agent/surrogate or provider; oral statement before two qualified witnesses; intentional destruction; or a later directive. Filing a divorce, separation, annulment, or protective-order action involving principal and agent revokes the primary appointment; revocation takes effect when communicated to the attending practitioner (§ 137-J:15). |
| Out-of-state directives | A health care power of attorney valid where executed is as effective in New Hampshire as a New Hampshire-executed document, but it cannot authorize conduct that violates chapter 137-J (§ 137-J:17). |
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New Hampshire uses a combined advance directive under RSA chapter 137-J. Its
durable-power-of-attorney component appoints the health care agent; its living-will
component records treatment guidance. A person may complete either or both, but
the directive must substantially follow the statutory form in § 137-J:20 and the
person must receive the substantially prescribed disclosure before signing
(§ 137-J:13).
Requirements one by one
Governing law and document
RSA chapter 137-J governs written directives for adults who later lose capacity.
The chapter defines the durable power of attorney for health care as the document
delegating decisions to an agent (§ 137-J:2(XII)). The prescribed combined form
puts the appointment in Part I and the living will in Part II (§ 137-J:20).
Who can sign
The principal must be at least 18 and have capacity to understand and
appreciate the nature and consequences of health-care decisions, including
significant benefits, harms, and reasonable alternatives (§ 137-J:2(VI),
(XXIII)). The principal normally signs. If physically unable, another person may
write the principal's name at the principal's express direction and in the
principal's physical presence (§ 137-J:14(II)).
Witnesses or notary
There are three routes. The principal signs in the physical presence of two or
more subscribing witnesses, a notary public, or a justice of the peace
(§ 137-J:14(I)). Witnesses must affirm that the principal appeared of sound mind
and free from duress, knew the nature of the directive, and signed freely. A
notary or justice of the peace acknowledges the signature.
Who cannot witness or serve
A witness cannot be the agent or surrogate, the principal's spouse or heir, a
person entitled to take under an existing will, trust, testamentary instrument,
or deed, the attending practitioner, or a person under that practitioner's
direction or control. No more than one witness may be the principal's health or
residential care provider or that provider's employee (§ 137-J:14(I)(a)).
The attending practitioner and anyone acting under that practitioner's direct
authority cannot exercise agent authority. Nor may an unrelated employee of the
principal's health or residential care provider (§ 137-J:8).
When the agent can act
Authority is springing, not immediate. It begins only when the attending
practitioner certifies in the medical record that the principal lacks capacity,
and ends if that practitioner certifies recovery (§ 137-J:5(II)). If the
principal has no attending practitioner for stated religious or moral reasons,
the directive may name a qualified non-agent to certify incapacity in a writing
acknowledged before a notary or justice of the peace (§ 137-J:5(III)).
Powers and limits
Subject to the directive and chapter, the agent may make any health-care decision
the principal could make (§ 137-J:5(I)). That broad grant includes treatment
consent, refusal, and withdrawal, including life-sustaining treatment, but it has
categorical limits.
An agent cannot stop the principal from naturally eating or drinking as desired,
consent to voluntary admission to a state institution, voluntary sterilization,
psychosurgery, or electro-convulsive shock therapy. Withholding life support
during pregnancy is barred unless the specified attending-practitioner and
obstetrician findings establish the statutory exception (§§ 137-J:2(XVI),
137-J:5(V), 137-J:19).
How to revoke
The principal may revoke through a signed, dated writing delivered to the agent,
surrogate, or provider; orally before two witnesses qualified under
§ 137-J:14(I)(a); by burning, tearing, obliterating, or another act showing the
specific intent; or by executing a later directive (§ 137-J:15(I)(a)-(b)). The
revocation becomes effective when communicated to the attending practitioner
(§ 137-J:15(II)).
Filing an action for divorce, legal separation, annulment, or a protective order
involving both principal and agent revokes the primary agent. If an alternate is
named, that alternate becomes effective; re-execution or written reaffirmation
can restore the original designation (§ 137-J:15(I)(c)).
Out-of-state directives
A durable power of attorney for health care valid under the law where executed
is as effective in New Hampshire as a locally executed document. It still cannot
authorize anything chapter 137-J forbids (§ 137-J:17).
What trips people up
- Witness acknowledgment is not the witness route. The statute says the
principal signs in the subscribing witnesses' presence. A notary or justice of
the peace uses acknowledgment (§ 137-J:14(I)). - Provider employees are not all barred as witnesses. One witness may be the
principal's health or residential care provider or its employee; two may not
(§ 137-J:14(I)(a)). - Signing does not activate the agent. The attending practitioner must first
certify incapacity in the medical record (§ 137-J:5(II)).
Common questions
Can I notarize instead of finding two witnesses?
Yes. A notary public is an alternative to two subscribing witnesses. A justice of
the peace is a third alternative (§ 137-J:14(I)).
Can my spouse witness?
No. The principal's spouse is expressly disqualified (§ 137-J:14(I)(a)).
May my agent decide about life-sustaining treatment?
Generally yes, subject to the directive and statutory limits. New Hampshire's
default grant reaches any health-care decision the principal could make, while
§ 137-J:5(V) preserves categorical exceptions.
Will a directive signed in another state work?
Yes, if valid where executed, but it cannot authorize conduct forbidden by New
Hampshire's chapter (§ 137-J:17).
Statutes and sources
- RSA 137-J:2 and 137-J:13 — definitions, age/capacity, disclosure, and
substantially prescribed form.
https://gc.nh.gov/rsa/html/x/137-j/137-j-mrg.htm
(accessed 2026-07-16) - RSA 137-J:5 — springing authority, scope, and categorical limits.
https://gc.nh.gov/rsa/html/X/137-J/137-J-5.htm
(accessed 2026-07-16) - RSA 137-J:8 — who cannot exercise agent authority.
https://gc.nh.gov/rsa/html/X/137-J/137-J-8.htm
(accessed 2026-07-16) - RSA 137-J:14 — execution routes, witness qualifications, and directed
signature.
https://gc.nh.gov/rsa/html/X/137-J/137-J-14.htm
(accessed 2026-07-16) - RSA 137-J:15 — revocation methods and filing-based revocation of an agent.
https://gc.nh.gov/rsa/html/X/137-J/137-J-15.htm
(accessed 2026-07-16) - RSA 137-J:17 — recognition of out-of-state directives.
https://gc.nh.gov/rsa/html/X/137-J/137-J-17.htm
(accessed 2026-07-16) - RSA 137-J:19 and 137-J:20 — disclosure statement and combined form.
https://gc.nh.gov/rsa/html/X/137-J/137-J-19.htm and
https://gc.nh.gov/rsa/html/X/137-J/137-J-20.htm
(accessed 2026-07-16)
Source links
Every statute quoted above, linked, with the date we checked it.
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