Power of Attorney in New Hampshire: How It Works and Who to Choose

Most people think of estate planning as deciding what happens after they die. A power of attorney does something different: it decides who can step in for you while you are still alive, if an illness, accident or simply age makes it hard to handle your own affairs. Here is how powers of attorney generally work in New Hampshire, and what to think about before you sign one.

What a power of attorney is

A power of attorney is a legal document in which you (the principal) give another person (your agent) authority to act on your behalf. Your agent does not need to be a lawyer. Most people choose a spouse, an adult child, a sibling or a trusted friend.

In New Hampshire there are two main kinds, and they are governed by different laws:

• A financial power of attorney, governed by RSA 564-E, New Hampshire's version of the Uniform Power of Attorney Act. It covers money and property: bank accounts, bills, taxes, real estate, insurance, retirement accounts and similar matters.
• A durable power of attorney for health care, which is a type of advance directive governed by RSA 137-J. It lets your agent make medical decisions for you if you cannot make them yourself.

A complete plan usually includes both. One document does not take the place of the other.

Why it matters: what happens if you don't have one

If you become unable to manage your finances and you have no valid power of attorney, your family generally cannot simply step in and sign for you. Being your spouse or your child does not, by itself, give someone legal authority over your bank accounts, your house or your retirement funds.

In that situation, a family member may need to ask the court to appoint a guardian under RSA 464-A. Guardianship is a court process. It can take time, involves filings and hearings, and the guardian may have ongoing reporting obligations to the court. A power of attorney signed while you are able to make your own decisions is often a simpler way to plan for the same situation, and it lets you choose who will act for you.

Health care works a little differently. If you have no guardian or health care agent available, New Hampshire law generally allows your attending practitioner to identify a "surrogate," such as a spouse or partner, adult child or parent, to make medical decisions, following the order of priority in RSA 137-J:35, and usually for a limited period. But a surrogate is chosen by that list, not by you, and family members do not always agree. Naming your own health care agent avoids leaving that choice to a statute.

The financial power of attorney under RSA 564-E

A few rules in New Hampshire's financial power of attorney law are worth knowing:

• It is durable by default. Under RSA 564-E:104, a power of attorney generally stays in effect if you later become incapacitated, unless the document expressly says otherwise. That is the whole point for most people.
• It is generally effective right away. Under RSA 564-E:109, a power of attorney takes effect when it is signed unless the document says it starts later, for example only if you become incapacitated. That second option is often called a "springing" power of attorney.
• Some powers must be spelled out. Under RSA 564-E:201, certain significant powers, such as making gifts, creating or changing a trust, or changing beneficiary designations or survivorship rights, generally must be expressly granted in the document. A general grant of authority is not enough for those.
• The agent has legal duties. RSA 564-E:114 requires an agent who has accepted the role to act in good faith, only within the authority granted, and according to your reasonable expectations to the extent the agent actually knows them, or otherwise in your best interest.

How a financial power of attorney is signed in New Hampshire

New Hampshire has specific signing requirements for a general financial power of attorney. Under RSA 564-E:105, it generally must:

• Be signed by you, by hand rather than electronically (or by someone signing in your presence at your direction)
• Be acknowledged before a notary public or other official authorized to take acknowledgments
• Include a signed disclosure statement in the form set out in the statute, which explains in plain terms how much authority you are giving your agent

There is also a step for the agent. Under RSA 564-E:113, the agent of a general power of attorney has no authority to act until he or she signs a written acknowledgment of the agent's duties, which is attached to the document. The agent does not have to sign it on the same day you do, but it must be signed before the agent uses the power.

Because these requirements are specific, a generic form from the internet may not meet them. A document that is missing a required piece may be refused by a bank or may not work at the moment your family needs it.

The health care power of attorney under RSA 137-J

A durable power of attorney for health care lets your agent make medical decisions for you, but only when you cannot make them yourself. Under RSA 137-J:5, the agent's authority generally begins when your attending practitioner certifies in your medical record that you lack the capacity to make health care decisions. While you can make your own decisions, you make them.

Under RSA 137-J:14, the document must be signed in front of either two qualified witnesses or a notary public or justice of the peace. The witness rules are strict. A witness generally cannot be your agent, your spouse or heir, someone who would inherit from you, or your attending practitioner, and no more than one witness may be your health or residential care provider.

New Hampshire's advance directive form also includes a living will section, where you can state your wishes about life-sustaining treatment. Many people complete both parts at the same time.

Choosing the right agent

The document is only as good as the person you name. When choosing an agent, consider:

• Trust. Your financial agent may have broad access to your money. Choose someone whose judgment and honesty you are confident in.
• Availability. Someone nearby and organized is often better suited than someone who lives far away or is already stretched thin.
• A backup. Naming a successor agent means the document still works if your first choice cannot serve.
• Family dynamics. Naming co-agents can sound fair, but it can also slow things down if they disagree. Think through how decisions will actually get made.

Talk with the people you plan to name before you sign. Your agents should know where the documents are and what you would want.

Changing or revoking a power of attorney

As long as you have capacity, you can generally revoke a power of attorney or replace it with a new one. Under RSA 564-E:110, a later power of attorney does not automatically revoke an earlier one unless it says so, so a new document should state clearly what it replaces. It is also wise to notify your former agent and any bank or institution that has a copy.

Major life changes are a good time to review. For example, under RSA 564-E:110, if a divorce, annulment or legal separation action is filed between you and a spouse who is your agent, that spouse's authority generally ends unless the document provides otherwise.

How it fits with the rest of your estate plan

A power of attorney ends at death. After that, your will or trust takes over. That is why a power of attorney is usually prepared together with a will and, for some families, a trust. If you are weighing those options, our guide to wills vs. living trusts in New Hampshire is a good place to start, and our article on dying without a will in New Hampshire explains what happens when there is no plan at all.

The bottom line

A power of attorney lets you decide, in advance, who will handle your finances and health care decisions if you cannot. In New Hampshire, the signing rules are specific, and a few powers must be granted expressly. Putting the right documents in place while you are healthy may help your family avoid a court process and reduce uncertainty later.

This article is for general informational purposes only and does not constitute legal advice. Laws change, and how they apply depends on the specific facts of your case. Reading this article or contacting Granfield Legal Services does not create an attorney-client relationship. Attorney advertising.