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Health
Instrument: Power of Attorney for Health Care (POAHC)
What is it for?
A “power of attorney for health care” (POAHC) allows an adult or emancipated minor (the “principal”) to appoint another adult or emancipated minor to (the “agent”) to make health-care decisions on the principal’s behalf when the principal lacks capacity. The POAHC is a type of “advance health-care directive,” the other being an “individual instruction,” which may be included in a POAHC. N.M. Stat. Ann. § 24-7A-2.
What does it do?
The POAHC empowers an agent to make health-care decisions for the principal when the principal lacks capacity to do so. A POAHC does not affect the principal’s right to make their own health-care decisions while they have capacity to do so. N.M. Stat. Ann. § 24-7A-11(A).
The agent generally may make all health-care decisions that the principal would have the right to make while having capacity. These include:
(1) selection and discharge of health-care practitioners and institutions;
(2) approval or disapproval of diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate;
(3) directions relating to life-sustaining treatment, including withholding or withdrawing life-sustaining treatment and the termination of life support; and
(4) directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care. N.M. Stat. Ann. § 24-7A-1 (G).
An agent must make health-care decisions in accordance with the principal’s individual instructions, if any, and other wishes known to the agent. Otherwise, the agent must make decisions in the principal’s best interest. N.M. Stat. Ann. § 24-7A-2(E).
How does one make it?
The POAHC must be in writing and signed by the principal, and it may or may not include individual instructions. N.M. Stat. Ann. § 24-7A-2(B).
When does it come into effect?
Unless otherwise specified in a power of attorney for health care, the authority of the agent becomes effective only upon a determination that the principal lacks capacity. N.M. Stat. Ann. § 24-7A-2 (C). A principal may specify in the POAHC the manner they wish for it to be determined they lack capacity. N.M. Stat. Ann. § 24-7A-2(D). Otherwise, two qualified health care professionals, one of whom is the principal’s primary care practitioner, will determine that the principal lack’s capacity. Also, one of the two professionals must be trained in assessing “functional impairment” if the principal’s lack of capacity is related to mental illness or developmental disability. N.M. Stat. Ann. § 24-7A-11(C).
“Capacity” is defined as an individual’s ability to understand and appreciate the nature and consequences of proposed health care, including its significant benefits, risks and alternatives to proposed health care and to make and communicate an informed health-care decision. N.M. Stat. Ann. § 24-7A-1(C).
How long does it last?
Presumably, the POAHC lasts until the principal dies or revokes it. A subsequent POAHC that conflicts with an earlier POAHC revokes the earlier one to the extent of the conflict. N.M. Stat. Ann. § 24-7A-3 (E).
How does one end it?
A principal, while having capacity, may revoke the POAHC either by a signed writing or by personally informing the supervising health-care provider. If the principal cannot sign, a written revocation can be signed on behalf of the principal in the presence of and witnessed by two other individuals. N.M. Stat. Ann. § 24-7A-3(A).
What does an example look like?
New Mexico provides a sample POAHC form at N.M. Stat. Ann. § 24-7A-4.
What else should one know?
No insurer may condition access to or modify the terms of insurance or benefits policies or plans upon the execution of any advance health-care directive, including a POAHC. N.M. Stat. Ann. § 24-7A-2.1(B).
There is also a specific advance health-care directive for mental health-related decisions. See N.M. Stat. Ann. § 24-7B-3.
New Mexico’s POAHC is based on the Uniform Health-Care Decisions Act.
Updated May 2022
General
Instrument: Power of attorney (POA)
What is it for?
The “power of attorney” (POA) allows an adult (the “principal”) to appoint an “agent” to make decisions on a broad range of financial, educational, and other matters. The POA may not be used for certain decisions, such as health care decisions.
What does it do?
Generally, the POA allows the agent to make decisions relating to the principal’s property on the principal’s behalf. N.H. Rev. Stat. Ann. § 564-E:107. An adult student can also use the POA to appoint an agent for educational decisions. N.M. Code R. § 6.31.2.13(K)(1).
Generally, in acting on the principal’s behalf, the agent must follow the principal’s reasonable expectations, act in good faith, and act only within the scope of authority granted in the POA instrument itself. If the principal’s expectations are unknown, the agent must make reasonable efforts to ascertain the principal’s expectations. Otherwise, the agent must act in the principal’s “best interest.” N.M. Stat. Ann. § 45-5B-114.
A POA is durable, that is, to remain valid despite the principal’s incapacity, unless it expressly provides that it ends following the incapacity of the principal. N.M. Stat. Ann. § 45-5B-104.
Third parties generally must accept acts by an agent as if they had been done by a principal unless they know that the agent’s authority has ended or the POA is invalid. N.M. Stat. Ann. § 45-5B-120. Third parties may request that the agent certify in writing that the POA is valid. N.M. Stat. Ann. § 45-5B-119.
How does one make it?
A POA must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the POA, generally should be notarized to be valid. N.M. Stat. Ann. § 45-5B-105.
When does it come into effect?
The agent’s authority becomes effective when the POA is executed, unless the POA provides for it to become effective at a future date or upon the occurrence of a future event. The principal may authorize one or more persons to determine in writing or other record that the specified event has occurred. If the POA takes effect upon the principal’s incapacity, as determined by either a physician, licensed psychologist, attorney at law, court, or appropriate government official. N.M. Stat. Ann. § 45-5B-109.
“Incapacity” is defined as the inability to manage an individual’s estate or financial or affairs, or both, either due to past gross mismanagement of the individual’s income and resources, or due to medical inability to manage these resources that has led or is likely to lead to financial vulnerability. N.M. Stat. Ann. § 45-5B-102(E).
How long does it last?
The POA ends when the principal dies or revokes the POA or the agent’s authority; the POA provides that it terminates; the purpose of the POA is accomplished; or the agent dies, becomes incapacitated, or resigns, and the POA does not specify another agent. N.M. Stat. Ann. § 45-5B-110.
How does one end it?
The principal may revoke a POA, presumably by destroying it. The revocation becomes effective when the agent is notified of it. Execution of a subsequent POA does not automatically revoke a prior POA unless the subsequent POA expressly provides so. N.M. Stat. Ann. § 45-5B-110.
What does an example look like?
There is a sample POA form at N.M. Stat. Ann. § 45-5B-301.
What else should one know?
New Mexico’s POA is based on the Uniform Power of Attorney Act.
Updated May 2022