New Health Care Proxy Tops 2006 T&E Legislation

2006 saw the enactment of an unusually large amount of trust and estate legislation at both the federal and state level. In this issue, we briefly summarize what we view as one of the most important but least publicized provisions.

New Health Care Proxy Form

House Bill 656 repeals in their entirety RSA chapter 137-H (living wills) and RSA chapter 137-J (health care proxies), and replaces both with a single new chapter 137-J (effective January 1, 2007), which now covers health care proxies, living wills, and do not resuscitate orders.

Health care proxies and living wills are now combined into a single statutory form that deals with both general health care decision making and decision making regarding artificial life support and resuscitation. This will eliminate one of the more confusing parts of every document execution meeting: the explanation of why clients need a health care proxy that includes questions about life support decision making authority and a separate living will. Unfortunately, the new form still requires clients to answer questions that appear to be duplicative on the topic of artificial life support, but having them in one document will alleviate the confusion somewhat.

Revocation by Demented Patient Addressed

Prior law allowed patients suffering from dementia or other cognitive impairments to override the authority of their appointed health care agent by refusing treatment authorized by their agent. This forced agents to go to court to compel the treatment via guardianship, essentially negating the utility of the health care proxy. Health care proxy documents have been unreliable whenever an incompetent patient is still able to communicate verbally, which has been especially problematic given the fact that incompetent patients are often uncooperative.

New RSA 137-J permits the principal to empower his or her health care agent to override any objection to treatment expressed when he or she is incapacitated. Because this provision of the bill was controversial, it is not included in the statutory form. Drafters must add an optional clause to empower the agent to override demented objections.

HIPAA Conflict Addressed

An agent under a health care proxy has no authority until the principal has been determined to be incapacitated by the principal’s medical provider. In the past, HIPAA raised the concern that medical providers and health care agents would face deadlock because health care providers would not have authorization to tell the agent that the principal was incapacitated (and that the agent was therefore authorized to act) without violating HIPAA.

Every financial services professional should discuss the new health care proxy statute with his or her clients.

Section 9(I)(a) of new RSA 137-J authorizes medical providers to share medical information with the agent if the principal is incapacitated. Therefore, as a matter of state law, providers will be authorized to release information to the agent, even though the first item of information will be the fact of incapacity.

Multiple Agents Clearly Authorized

The prior version of RSA 137-J had been interpreted by some to permit the appointment of only one agent (as opposed to multiple co-agents with joint or concurrent authority). New RSA 137-J makes clear that a principal may name joint or concurrent agents, so long as the document expressly describes the nature of the co-agency. The naming of multiple agents without clear specification of the nature of the co-agency will be presumed to cause successive nominations, with the order of priority governed by the order in which the names appear.

Do Not Resuscitate (DNR) Orders

A health care proxy may now authorize the agent to consent to the entry of a DNR order in the principal’s medical chart. Like the power to override demented objections, this provision does not appear in the statutory form, and must be added as optional language. Alternatively, if the principal is already suffering from a terminal illness at the time that the principal signs the health care proxy, the principal may also affirmatively state in the health care proxy that he or she does not want CPR.

Execution Simplified

Health care proxies will no longer require two witnesses and a notary. After January 1, 2007, the principal may sign before two witnesses or before a notary, but both are not required.

Contact Jan P. Myskowski (603-629-4560) or any member of the Wiggin & Nourie Trusts and Estates Group if you have questions about these and other trust and estates questions.

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