August 7, 2026
3:02 pm

Life Settlements for New Hampshire Elder Law Attorneys: A 2026 Practice Guide

The exposure in an elder law file is almost never that a client sold a policy — it is that a client was advised, explicitly or by silence, to let a policy lapse that had six-figure secondary-market value, and nothing in the file shows the question was ever asked. That is the frame worth adopting: not “should this client sell,” but “can this file demonstrate that the asset was identified, screened, and disposed of on an informed basis.”

New Hampshire adds three wrinkles that make documentation more important than in most jurisdictions. The state’s Uniform Power of Attorney Act requires an express grant for several acts an agent might otherwise assume are covered. Guardianship requires proof of incapacity beyond a reasonable doubt, an unusually demanding standard that lengthens the timeline for a client whose capacity is failing. And the state’s Medicaid resource standard has historically differed from the figure used in most states, which means a worksheet imported from a Massachusetts or Vermont practice can be wrong on its face.

In This Article

The Exposure: Silence on a Lapsing Policy
Documenting the Screen When the Answer Is “No Market”
The Transfer-Penalty Memo That Actually Protects the File
RSA 564-E and the Express-Grant Trap
Guardianship in New Hampshire: The Timing Problem
The 2026 New Hampshire Numbers
Regulator, Statute, and Three Verifications
Frequently Asked Questions

Life Settlements for New Hampshire Elder Law Attorneys: A 2026 Practice Guide

The Exposure: Silence on a Lapsing Policy

Consider the common fact pattern. A client at 79 comes in for Medicaid planning. She mentions, in passing, that she has “a universal life policy but it costs too much and I’m going to stop paying it.” The file records that she has life insurance with a $4,000 cash surrender value. Eighteen months later she has died, the policy lapsed, and a nephew who is an insurance agent tells the family the contract would have sold for $175,000 because the insured had a documented cardiac history.

The question the family’s next lawyer will ask is not whether you gave bad advice. It is what your file shows you did with the information you had. If the file contains a short memo saying the cover page was requested, the face amount was $500,000, the chassis was universal life, the client’s health had declined since issue, a review was recommended, and the client declined — you have a defensible file. If the file contains a line item reading “life insurance: $4,000,” you do not.

The professional obligation here is not to become an expert in secondary-market pricing. It is competence in the sense of knowing that the asset class exists, that carrier surrender value is not fair market value, and that the client should be told so. Screening takes one document and ten minutes.

The screen: insureds generally over 70 or younger with a serious impairment, face amounts above roughly $100,000, health worse than at underwriting, and a universal life, guaranteed universal life, or convertible term chassis. Policies failing that screen almost never draw offers. Policies passing it frequently do.

Documenting the Screen When the Answer Is “No Market”

Most screens come back negative, and a negative screen documented is worth as much as a positive one pursued. The memo should be four sentences and it should state facts rather than conclusions:

The policies identified, with face amount, carrier, chassis, issue date, and owner from the cover page.
Whether the client’s health has changed materially since issue, in the client’s own account.
Whether the policy clears the practical market threshold, and why or why not.
What the client was told and what the client decided, with a date.

A $15,000 final expense policy on a client with no material impairment does not clear the threshold, and writing “no secondary market at this face amount; recommended irrevocable assignment to a licensed funeral establishment to convert to an exempt burial arrangement” is a complete and correct professional output.

It is worth saying plainly to clients and to referral sources that keeping a policy is frequently the right answer. Where a surviving spouse depends on the death benefit, where an accelerated death benefit or chronic illness rider already in the contract provides better access to cash than a sale would, or where the offer is low relative to a guaranteed benefit the client can afford to carry, a settlement is the wrong tool. That analysis is developed at when keeping the policy is the right answer. A practice that documents its “do not sell” recommendations with the same rigor as its “sell” recommendations is a practice whose advice is credible.

The Transfer-Penalty Memo That Actually Protects the File

Under 42 U.S.C. § 1396p(c), the 60-month look-back reaches dispositions of assets for less than fair market value. A documented sale at fair market value is a conversion, not a disposition below value, and it does not create a penalty period. That much is settled and can be stated flatly.

The memo that protects the file addresses the four adjacent risks:

Timing against the resource limit. Proceeds count as a resource on the first day of the month after receipt. A closing late in a month with no spend-down plan drafted manufactures an over-resource month that then has to be explained to a caseworker.
The fair market value proof. This is the part practitioners skip. Keep the broker engagement, the written compensation disclosure, every offer received, and both life expectancy reports. If two life expectancy reports disagree — they often do — keep both. A file with one convenient report and no others invites the argument that the process was not competitive.
Post-closing distributions. Compensating a family caregiver from proceeds without a written personal care agreement predating the services is the single most common way a clean transaction becomes a penalty. In New Hampshire, where adult children frequently provide years of care to a parent aging in place in a rural county, this comes up constantly. Paper it in advance at a defensible rate, or expect the penalty.
The alternative-disposition comparison. Show that surrender, reduced paid-up, lapse, and sale were compared. A file showing the comparison is a file showing informed advice.

Further detail on the interaction sits at the Medicaid look-back and selling a policy.

Item	New Hampshire posture as of 2026 (verify)
Insurance regulator	New Hampshire Insurance Department
Insurance code	RSA Title XXXVII; settlement provisions in the 408-series — confirm chapter
Medicaid agency	NH DHHS, Bureau of Elderly and Adult Services; CFI waiver for HCBS
Individual resource limit	Historically $2,500, not the $2,000 used in most states — confirm
Power of attorney act	RSA 564-E; express grant required for beneficiary and survivorship changes
Guardianship standard	RSA 464-A; incapacity proved beyond a reasonable doubt
State estate tax	None (legacy and succession tax repealed for deaths after 12/31/2002)
State income tax	None; Interest & Dividends Tax repealed for periods after 12/31/2024
Skilled nursing cost	Among the higher-cost states; verify facility rate directly

The Transfer-Penalty Memo That Actually Protects the File

RSA 564-E and the Express-Grant Trap

New Hampshire adopted the Uniform Power of Attorney Act at RSA Chapter 564-E. The Act’s architecture matters here: general grants of authority carry broad powers, but a defined set of acts — the ones that can change who ultimately receives property — require an express grant in the instrument. Changing a beneficiary designation and altering rights of survivorship are among them.

The practical consequence for a policy sale is that a form power of attorney that says the agent may “conduct all insurance transactions” may not be enough to satisfy a carrier or a settlement provider that the agent may transfer ownership of the contract. Providers underwrite this question carefully, because a defective transfer of ownership is a defect in the buyer’s title to a long-dated asset. Carriers refuse ownership changes on ambiguous authority as a matter of routine.

Three practice points follow:

Read the instrument before anyone spends time on valuation. If it lacks an express power reaching transfer of policy ownership and beneficiary designation, the valuation work may be wasted.
If the client retains capacity, execute a new instrument. A fresh power of attorney with express language is faster, cheaper, and cleaner than arguing implied authority to a provider’s counsel.
If the client lacks capacity and the instrument is defective, the path is guardianship — which in New Hampshire is not a fast path. See below.

The general considerations are set out at using a power of attorney to sell a policy. Note separately that even with unimpeachable agent authority, settlement providers require a contemporaneous clinical attestation of the seller’s capacity to understand the transaction; where the principal cannot supply that, the agent’s authority alone may not carry the file. The interaction is discussed at capacity questions in policy decisions.

Guardianship in New Hampshire: The Timing Problem

New Hampshire’s guardianship statute, RSA Chapter 464-A, governs guardians of incapacitated persons and is administered through the probate division of the Circuit Court. New Hampshire is notable for requiring that incapacity be established by proof beyond a reasonable doubt — a criminal-law standard applied in a civil protective proceeding, and far more demanding than the clear-and-convincing standard most states use. The proposed ward is entitled to counsel and to be present.

Whatever one thinks of the policy behind that standard, its operational effect on a lapsing-policy problem is real: a guardianship petition is not a mechanism for solving a 45-day grace period. Contested petitions can run months. If the only route to authority is a guardianship, and the policy lapses on a date certain, the honest advice is that the policy may be lost and the practitioner should say so early rather than discovering it at the hearing.

That timing reality pushes work upstream. Where a client’s cognition is declining but has not failed, the right moves are: execute or refresh a power of attorney with express insurance and beneficiary powers; obtain a clinical capacity attestation while it can be obtained; and, if a policy is genuinely at risk, order the in-force illustration and run the screen now rather than at the next annual review.

Where a guardianship is already in place, the appointment order defines the guardian’s authority over property. If it does not clearly reach the sale of a significant asset, seek instructions rather than making a judgment call — and give notice to interested parties. Beneficiaries have no legal veto over an owner’s disposition of a policy, but a surprised remainder beneficiary reading about a sale in an accounting will make the fiduciary’s life difficult, and notice costs almost nothing.

The 2026 New Hampshire Numbers

Confirm each of these with the agency before filing; they are stated here as of 2026 with the year attached for a reason.

Medicaid agency: New Hampshire Department of Health and Human Services, with long-term care eligibility administered through the Bureau of Elderly and Adult Services. Home and community based services run through the Choices for Independence waiver.
Individual countable resource limit: New Hampshire has historically applied a $2,500 individual resource standard rather than the $2,000 figure used in most states. This is the single most common error in a worksheet imported from another New England practice. Confirm the current figure with DHHS before you rely on it.
Spousal impoverishment: federal figures adjusted each January; the 2025 maximum community spouse resource allowance was $157,920 with a $31,584 minimum. Use current-year CMS numbers.
Life insurance face-value exclusion: the SSI-linked $1,500 total face value exclusion applies; above it, the full cash surrender value counts.
State estate tax: none. New Hampshire repealed its legacy and succession tax effective for deaths on or after January 1, 2003, and imposes no estate tax.
Inheritance tax: none.
State income tax: New Hampshire has never taxed earned income, and its Interest and Dividends Tax was repealed effective for taxable periods beginning after December 31, 2024. As of 2026 there is no New Hampshire personal income tax layer on a settlement gain, leaving a purely federal analysis under IRC § 101 and the § 6050Y reporting regime. Framework at New Hampshire life settlement taxes; the computation belongs with the client’s CPA.
Sales tax: none, which changes the arithmetic on exempt-asset spend-down purchases relative to neighboring states.
Cost of care: New Hampshire ranks among the more expensive skilled nursing markets in the country, commonly quoted in recent surveys in the range of $11,000 to $14,000 per month for a private room, with regional variation between the Seacoast, the Merrimack Valley, and the North Country. Verify the specific facility’s private-pay rate.

Regulator, Statute, and Three Verifications

The regulator is the New Hampshire Insurance Department, headed by the Insurance Commissioner. The Department licenses producers and settlement market participants, maintains a licensee lookup, and takes consumer complaints about unlicensed solicitation. Its consumer function is described at New Hampshire Insurance Department consumer help.

New Hampshire’s insurance law sits in RSA Title XXXVII, and viatical and life settlement activity is regulated within that title in the 408-series of chapters, with implementing rules in the New Hampshire Code of Administrative Rules. We are not asserting a precise chapter and section number here. An attorney should pull the current citation from the General Court’s statute portal or confirm with the Department before using it in a memo or a brief. Licensing requirements as applied to brokers and providers operating in the state are collected at New Hampshire life settlement licensing.

Three verifications belong in every settlement matter:

Licensure. Obtain license numbers for both the broker and the ultimate provider and check them against the Department’s records. An unlicensed intermediary ends the conversation.
Compensation disclosure. In the model framework adopted broadly across the states, a life settlement broker owes a duty to the policy owner, not the buyer, and must disclose compensation. Get it in writing and file it.
Rescission window. State settlement acts give the seller a right to rescind for a defined period after receiving proceeds. Confirm New Hampshire’s specific window against the current statute and calendar it — do not assume another state’s number.

Where the policy is trust-owned, the controlling questions shift from the client’s authority to the trustee’s, and are addressed at the New Hampshire estate planner guide.

Frequently Asked Questions

What is New Hampshire’s Medicaid resource limit for an individual?

New Hampshire has historically applied a $2,500 individual countable resource standard rather than the $2,000 used in most states. This is the most common error in a worksheet imported from a Massachusetts, Maine, or Vermont practice, and it changes the spend-down arithmetic. Confirm the current figure with the Bureau of Elderly and Adult Services before filing.

Does a general power of attorney let an agent sell a New Hampshire client’s policy?

Often not. RSA 564-E, New Hampshire’s Uniform Power of Attorney Act, requires an express grant for acts that change who ultimately receives property, including beneficiary designations and rights of survivorship. Carriers and settlement providers scrutinize this language and will refuse an ownership change on ambiguous authority. If the client retains capacity, execute a new instrument with express powers.

Why does New Hampshire’s guardianship standard matter for a lapsing policy?

RSA 464-A requires incapacity to be proved beyond a reasonable doubt, an unusually demanding standard for a civil protective proceeding. Petitions can take months, especially if contested. A guardianship is therefore not a mechanism for solving a 45-day grace period, and a practitioner should say so early rather than discovering it at the hearing.

What should be in the file when the answer is that no market exists?

Four things: the policies identified with face amount, carrier, chassis, issue date, and owner taken from the cover page; whether health has changed materially since issue; whether the policy clears the practical market threshold and why not; and what the client was told and decided, with a date. A documented negative screen is a complete professional output.

Is there a New Hampshire tax layer on life settlement proceeds?

Not as of 2026. New Hampshire has never taxed earned income, and its Interest and Dividends Tax was repealed for taxable periods beginning after December 31, 2024. The state also imposes no estate or inheritance tax. The analysis is therefore purely federal under IRC § 101 and the § 6050Y reporting rules, and belongs with the client’s CPA.

How do I prove fair market value if the state challenges the sale?

Keep the broker engagement letter, the written compensation disclosure, every offer received, and both life expectancy reports even when they disagree. A file containing one convenient report and no competing offers invites the argument that the process was not competitive and that the shortfall was itself an uncompensated transfer under 42 U.S.C. § 1396p(c).

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