Power of Attorney (POA) & Directives
Power of Attorney provides the option to make financial and personal decisions for your affairs. New Mexico Chapter 45 Article 5B Uniform Power of Attorney governs power of attorneys. There types of power of attorney’s include general, limited, durable and springing.
POA Overview
A POA permits a person, known as agent, to make decisions for you with the agent’s signature legally binding as if you signed the document. The durable POA gives the agent authority to make decisions for financial and legal matters. There are many legal requirements needing to be met so consulting with an attorney is ideal to ensure it is set up properly.
In order for the durable power of attorney to be valid, it requires:
Signature by you and the agent.
There is an exception in which you can have another sign on your behalf in your conscious presence aka “surrogate signer”
Notary public signature or person authorized by law to take acknowledgements
More than one agent can be designated in which co-agents may independently exercise independent authority
Matters the agent is approved to manage
Effective the date signed unless a specific date or occurrence of an event occurs to prompt its necessity
If you become incapacitated and you have not identified an agent to handle matters, or if you are unwilling or unable to decide, the power of attorney could be decided for you, contact an attorney for further detail
Revocable or set for a certain duration, contact attorney for further detail
General
This type gives your agent the ability to make decisions such as paying creditors, financial transactions, signatory of documents on your behalf. It ends when you either die or become incapacitated.
Limited
This type usually has a time restraint, specific action and may be for a duration in which you will be unavailable. The POA ends when the time ends, or the specific transaction concludes.
Durable
A durable POA can be general or limited. It maintains effect if you become incapacitated. Under POA law, incapacity is defined under New Mexico Chapter 45 5B-1-102 Power of Attorney with inability of you to manage your finances, estate, or both due to:
Gross mismanagement with behavior proof that your income, resources or medical inability to manage your resources or income
Gross mismanagement resulted in financial vulnerability
You are missing, incarcerated or detained, not in the US or unable to return
Springing
A springing POA provides an agent authority to act for your decisions but only becomes effective once you become incapacitated.
Consulting with an attorney is important to help with diminishing the ability for others to interpret your desires.
Advanced Medical Directives
A durable power of attorney does not permit an agent to decide medical directives for you, otherwise know as advance healthcare directives. This is governed by New Mexico Chapter 24 Article 7A Uniform Healthcare Decisions Act and has a separate process if you want somebody to make decisions for health care if you become incapacitated.
Unless specified in a healthcare advanced directive, lack of capacity, recovery of capacity, or another condition exists that impacts individual instruction, or authority of an agent shall be made by a primary care professional and another professional health-care opinion
If it is a mental health or disability concern, one of the professionals must specialize in the area of question whose expertise and training for functional impairment assessment
Denial of treatment by you is not enough to solely note lack of capacity under this law
Incapacity under this law shall not be evidence of incapacity under the Uniform Probate Code Article 5 Section 101
Can be challenged
There are many free resources such as New Mexico Health Department, the hospital you receive treatment from, etc. These forms may legally suffice, however if you complete many different versions and they do not have the same instructions, it could pose issue. It is recommended to complete one form to avoid contradiction. A do not resuscitate (DNR) is another directive and most healthcare providers should have one available for your completion.
Mental Health Directives
Mental health directives are governed by New Mexico Chapter 23 Article 7B Uniform Mental Health Act. New Mexico Chapter 24 Article 7B. Capacity is assessed under this law to include:
Made by a mental health professional and a qualified health care provider
Denial of recommended professional treatment by you is not enough to solely note lack of capacity
Can be challenged
Incapacity under this law shall not be evidence of incapacity under the Uniform Probate Code Article 5 Section 101
Incapacity determinations by professionals has additional requirements, confer with attorney
To avoid ambiguity and clear instrument creation, contact an attorney for assistance all POA’s and directives.
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