A New Hampshire durable power of attorney form (DPOA) is a legal document that allows someone (the “principal”) to name a trusted person (the “Agent”) to make financial and business decisions on their behalf in the state of New Hampshire.
The extent of authority granted can range from specific to comprehensive, based on the principal’s choice. The term “durable” signifies that this power of attorney remains valid even if the principal becomes incapacitated. Once signed in compliance with State law, the agent must provide this form to any third party they engage with while representing the principal.
Laws
In New Hampshire, power of attorney forms are durable by default, meaning that they are still valid even after you’re incapacitated. If you wish to terminate the DPOA once you become incapacitated, you must explicitly state so on the document.
- Relevant Laws: Chapter 564-E (New Hampshire Uniform Power of Attorney Act, effective January 1, 2018)
- Presumed Durable: Yes. § 564-E:104
- Signing: The principal’s signature is required on all powers of attorney.
- Notarization: A durable power of attorney needs to be notarized in New Hampshire. § 564-E:105
- Statutory Form: Yes — § 564-E:301
- Disclosure Document: This must be attached to your DPOA to ensure you are fully aware of the implications of creating a POA and giving powers to an agent (§ 564-E:301).
Definitions
Durable – “Durable,” with respect to a power of attorney, means not terminated by the principal’s incapacity (§ 564-E:102(4)).
Power of Attorney – “Power of attorney” means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used (§ 564-E:102(15)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
- What counts as a gift: The term “gift” covers anything given for someone’s benefit, such as money to trusts, accounts for minors, or college savings plans (26 US Code § 529).
- When an agent can give gifts: An agent (someone acting on behalf of the principal) can only give gifts from the principal’s assets if it aligns with what the principal wants (§ 564-E:217). If the agent doesn’t know what the principal would want, they should make decisions based on what seems best for the principal, considering many factors:
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- Any known wishes of the principal.
- The principal’s past behavior with giving gifts.
- The principal’s plans for their estate after they pass away.
- How the gift might affect the principal’s ability to meet their future needs and maintain their lifestyle, including housing and healthcare.
- The tax implications of the gift.
- If giving the gift could mean the principal won’t have enough resources to meet their needs, especially if it could affect their eligibility for Medicaid.
- The risk of the gift leading to the principal needing to move into a nursing home or other care facility sooner than necessary or affecting their access to care in their preferred setting.
Agent’s Authority Limitations
An agent’s authority in New Hampshire is limited by the terms of the Power of Attorney document itself, state law, and the principal’s best interest. The agent cannot make decisions that conflict with the express wishes of the principal.
For example, they cannot change the principal’s will, vote in public elections on the principal’s behalf, or make decisions regarding the principal’s health care unless specifically granted those powers in the document or another legal document like a Health Care Proxy (§ 564-E:201).
Revocation and Termination
- Revocation: If the principal decides they no longer need your services, they can revoke the DPOA. This requires them to be mentally competent and to notify you in writing.
- Life Changes: Certain life events, like the death of the principal or a divorce (if you’re the spouse), automatically end your role unless the document expressly states that it survives the divorce.
Safekeeping and Registration
New Hampshire does not have a state-wide registry for Durable Powers of Attorney. However, it is crucial to keep the original document in a secure yet accessible place.
Copies should be provided to the agent, financial institutions, and healthcare providers as needed. Recording the document with the county register of deeds can be beneficial for real estate transactions.
Additional Resources:
- New Hampshire Bar Association: Provides resources and information to match you with legal assistance regarding durable powers of attorney and estate planning.
- Legal Aid and Pro Bono Services: Various organizations offer free legal help to those who qualify based on income. Legal Assistance of New Hampshire is one such resource that can assist with drafting and understanding DPOAs.
