How To Make a Power of Attorney in New Hampshire FAQ

What Is a Power of Attorney?

A power of attorney (POA) is a legal document that allows a person, known as the principal, to designate another person, known as the agent or attorney-in-fact, to manage their financial and legal matters. You can find the rules for New Hampshire’s powers of attorney in §564-E:101 through §564-E:403 of the New Hampshire code.

There are different types of power of attorney documents with different purposes. A financial power of attorney is for handling financial and legal matters. A health care directive is for making medical decisions and handling treatments, as well as end-of-life care.

If you are suddenly unable to manage your affairs, your family members must petition a court for conservatorship. A court appoints a conservator to act in your place. By having an agent, you avoid the need for a conservatorship.

Who Can Be My Agent?

You can name anyone as your agent as long as they are an adult and competent. They could be a family member, friend, or professional advisor. When choosing an agent, you want someone you trust, but also make sure they are responsible and organized.

An agent has a fiduciary duty to act in good faith and in the best interest of the principal, meaning they must avoid conflicts of interest. But they do have significant control over a principal’s money and property.

Avoid using more than one agent or “co-agents.” If your agents must act jointly, they may disagree. Or if they can act independently, they may contradict each other’s decisions and actions. Instead, name one person as your primary agent and the other person as their backup or successor agent. If your primary agent is unavailable, your backup agent can step in.

What Can My Agent Do in New Hampshire?

You decide what your agent can do under your power of attorney. For example, you may want your agent to have the ability to manage your bank accounts, handle your investments, or buy and sell your property. Under §564-E:204-§564-E:217, you may grant your agent general authority to handle matters involving:

• Real property (real estate)
• Tangible personal property (personal possessions)
• Stocks and bonds
• Commodities and options
• Banks and other financial institutions
• Operation of entity or business
• Insurance and annuities
• Estates, trusts, and other beneficial interests
• Claims and litigation
• Personal and family maintenance
• Benefits from governmental programs or civil or military service
• Retirement plans
• Taxes

However, there are certain powers under §564-E:201 that you must specifically grant to your agent, such as the following:

• Create, amend, revoke, or terminate any living trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority granted under the power of attorney
• Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
• Exercise fiduciary powers that the principal has authority to delegate
• Exercise authority over the content of the principal’s electronic communications

Some of these powers have the potential to reduce your estate. Why would you want to let your agent do that? Perhaps so your agent can lower your estate taxes or qualify you for government programs such as Social Security or Medicaid. You must specifically grant your agent the power to do this, so think carefully about what you want and discuss it with your agent.

What Is a Durable Power of Attorney in New Hampshire?

A durable power of attorney continues to be effective even when the principal is incapacitated. Under New Hampshire code §564-E:104, a power of attorney is durable unless it expressly provides that it is terminated by the incapacity of the principal.

When Is the Power of Attorney Effective?

Under §564-E:109, power of attorney in New Hampshire is effective when signed unless the principal specifies a future effective date or contingency, such as the principal’s incapacity.

When Does the Power of Attorney End?

Your power of attorney ends at your death or if you revoke it during your lifetime. It will also end if:

• You are incapacitated, and your POA is non-durable
• Your POA has a termination date, and that date occurs
• The purpose of the power of attorney is accomplished
• If your agent dies, becomes incapacitated, or resigns, and you do not have a backup agent

Your agent’s authority ends if you revoke it, the power of attorney terminates, or if your agent dies, becomes incapacitated, or resigns. If your agent is your spouse and you file for divorce or annulment, their authority ends unless you provide otherwise in your power of attorney.

Does New Hampshire Have a Statutory Power of Attorney?

Yes. New Hampshire has a power of attorney form in §564-E:301. However, you do not have to use that form. You can either create a power of attorney yourself tailored to your situation or hire an estate planning attorney.

Can I Make My Own Power of Attorney in New Hampshire?

Yes. Before you make a financial power of attorney, you should know who you want as your agent and what powers you want to grant them. Many people use state-specific online estate planning forms conforming to New Hampshire state laws. However, if you have questions about power of attorney documents and agents, talk to an attorney for legal advice.

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How Do I Make My Power of Attorney Valid in New Hampshire?

New Hampshire has specific legal requirements under §564-E:105. To make a valid power of attorney, you must be an adult and mentally competent. Your power of attorney must be in writing and signed by you in front of a notary public. And your power of attorney must include a disclosure statement found in §564-E:105.

Do I Have to Notarize My Power of Attorney in New Hampshire?

Yes. Under §564-E:105, a notary public or someone authorized to take acknowledgments must attest to your signature on the document.

What Should I Do After Signing My Power of Attorney?

Once you sign your power of attorney, inform your agent about their role and responsibilities. Provide them with a copy of the document and provide copies to any third parties that may require it, such as banks and other financial institutions. A third party may ask for an agent certification form in which your agent attests that your power of attorney is effective and that they have the authority to act as your agent.

Does a Power of Attorney Agent Get Paid in New Hampshire?

In New Hampshire, your agent is entitled to reimbursement of reasonable expenses incurred while acting under your power of attorney. They may also receive reasonable compensation for their time unless you state otherwise in your power of attorney.

Is My New Hampshire Power of Attorney Valid in Another State?

Yes. Generally, a New Hampshire power of attorney created and executed according to New Hampshire law is recognized in other states.

Can I Revoke My New Hampshire Power of Attorney?

Yes. As long as you are mentally competent, you can revoke your power of attorney document anytime. To revoke your POA, make a written statement of revocation and give copies to your agent and all third parties who relied on your original POA.

What Estate Planning Documents Should I Have in New Hampshire?

To make a complete estate plan, two other estate planning documents are needed in addition to a financial power of attorney.

A health care directive combines a medical power of attorney with a living will or advance directive. In your directive, you choose someone as your agent to get your medical records, talk to healthcare providers, and make healthcare decisions on your behalf when you are unable to do so yourself. You can also include instructions on what life-sustaining treatments you want or don’t want if you have an end-stage illness or terminal condition.

A last will and testament covers your instructions on how you want to distribute your property, who you want to manage your estate, and who you want to care for your minor children. If you don’t have a will, a probate court distributes your property according to state intestacy laws. They also decide who should take care of your children, and you may not like their choice. By making a will, you have control over these important decisions and have peace of mind that you are protecting your loved ones.

Fortunately, by using online templates, creating a valid power of attorney and other New Hampshire estate planning documents is easy.