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Medical Power of Attorney in New Mexico: The Advance Health-Care Directive and Who Decides
New Mexico's power of attorney for health care needs to be in writing and signed by your parent; witnesses are recommended but not required. Here is how it works under the Uniform Health-Care Decisions Act, and what happens without one.
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What to know
- A New Mexico power of attorney for health care "must be in writing and signed by the principal" (NMSA 24-7A-2); the statute's optional form says witnesses are "recommended but not required," and Article 7A has no notary requirement.
- Unless your parent's document says otherwise, the agent's authority starts only when your parent is determined to lack capacity, by two qualified health-care professionals, one of them the primary care practitioner.
- Unless related to your parent, the agent can't be an owner, operator or employee of a health-care institution where your parent is receiving care.
- Without an agent or guardian, New Mexico law sets a priority list of family members who can act as surrogate, starting with the spouse (NMSA 24-7A-5).
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
In New Mexico, a medical power of attorney (a power of attorney for health care) names an agent to make your parent's health-care decisions; it must be in writing and signed by your parent, and witnesses are optional. The statute defines it as "the designation of an agent to make health-care decisions for the individual granting the power, made while the individual has capacity." Under NMSA 24-7A-2, it can authorize the agent "to make any health-care decision the principal could have made while having capacity," and "The power must be in writing and signed by the principal." The statute also prints an optional form your parent can use for free.
What is a power of attorney for health care in New Mexico?
It's one of the two kinds of advance health-care directive under New Mexico's Uniform Health-Care Decisions Act, NMSA 24-7A-1 to 24-7A-18. An advance health-care directive "means an individual instruction or a power of attorney for health care made, in either case, while the individual has capacity." An adult, or an emancipated minor, can make one while having capacity, and everyone is presumed to have capacity to make one.
The agent follows your parent's instructions and other known wishes, otherwise their best interest, considering their personal values, and the agent's decision "is effective without judicial approval." Unless the directive says otherwise, the agent has the same rights as your parent to request, receive and copy medical records. It's separate from a financial power of attorney, whose statutory form excludes health care; see our New Mexico power of attorney guide.
How is it different from instructions for health care?
A power of attorney for health care names someone to decide for your parent; an individual instruction records your parent's own decisions, and it can even be oral.
| Document | What it does | Signing rule |
|---|---|---|
| Power of attorney for health care | Names an agent to make health-care decisions | In writing and signed by your parent (24-7A-2); witnesses optional |
| Individual instruction (Part 2 of the optional form) | States your parent's own directions, such as end-of-life choices, nutrition and hydration, and pain relief | Can be written, or oral if told personally to a health-care provider |
The optional form combines both, and your parent can complete any part. The Aging and Long-Term Services Department's packet describes the instructions part this way: "Part II, Instructions for Health Care, functions as your state's living will." For the general picture, see power of attorney vs. advance directive.
How do you sign a health care power of attorney in New Mexico?
Your parent puts it in writing and signs it. The optional form in NMSA 24-7A-4 says, "If you use this form, be sure to sign it and date it," and adds: "It is recommended but not required that you request two other individuals to sign as witnesses." Its witness lines are marked optional.
Article 7A of the Uniform Health-Care Decisions Act has no notary requirement and doesn't list people who are barred from witnessing. The state-hosted packet says witnessing isn't required "but it may be helpful to do so in case your Advance Health-Care Directive is ever challenged." If your parent wants extra formality, witnesses are allowed; the statute doesn't require them.
Who can't serve as the health care agent?
Under NMSA 24-7A-2, "Unless related to the principal by blood, marriage or adoption, an agent may not be an owner, operator or employee of a health-care institution at which the principal is receiving care." The same rule applies to a surrogate.
Divorce changes things. "The filing of a petition for or a decree of annulment, divorce, dissolution of marriage or legal separation revokes a previous designation of a spouse as agent unless otherwise specified in the decree or in a power of attorney for health care." The optional form lets your parent name a first and second alternate agent.
When does the agent start making decisions?
Unless the document says otherwise, "the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity." Under NMSA 24-7A-11, that determination is made "by two qualified health-care professionals, one of whom shall be the primary care practitioner." Qualified professionals include a physician, physician assistant, nurse practitioner, nurse, psychologist or social worker.
The optional form offers a choice: if your parent initials a box, "my agent's authority to make health-care decisions for me takes effect immediately." Your parent can challenge a finding that they lack capacity by a signed writing or by telling a health-care practitioner. An agent can't consent to your parent's admission to a mental health-care facility.
Where do you get a New Mexico form?
The statute prints one. NMSA 24-7A-4 says the "following form may, but need not, be used to create an advance health-care directive," and the form itself says, "THIS FORM IS OPTIONAL. Each paragraph and word of this form is also optional." Part 1 is the power of attorney for health care, Part 2 is instructions for health care, and Part 3 names a primary care practitioner.
The New Mexico Aging and Long-Term Services Department also hosts a free advance directive packet with instructions. A health-care practitioner or institution "may not require or prohibit the execution or revocation of an advance health-care directive as a condition for providing health care."
What happens if your parent has no health care agent?
A surrogate decides: someone your parent named by telling the supervising provider, or else a family member from a priority list that starts with the spouse. Under NMSA 24-7A-5, if your parent has been found to lack capacity and no agent or guardian is reasonably available, a surrogate can decide. While they have capacity, your parent can name a surrogate by personally informing the supervising health-care provider. Otherwise, in descending order of priority:
- the spouse, unless legally separated or a petition for annulment, divorce, dissolution or legal separation is pending;
- "an individual in a long-term relationship of indefinite duration with the patient" who has shown a commitment similar to a spouse's;
- an adult child;
- a parent;
- an adult brother or sister;
- a grandparent.
If none is reasonably available, an adult "who has exhibited special care and concern for the patient" and knows their personal values may act. If members of one class disagree, the provider follows the majority of those who have shared their views; if they're evenly divided, that class and everyone lower is disqualified. Your parent can disqualify anyone, including a family member, from serving. If the family can't resolve it, a district court can direct a decision; see conservatorship and guardianship.
How do you revoke a New Mexico advance directive?
Your parent can revoke it while having capacity, and the method depends on which part is being revoked.
- The agent's appointment. Your parent, while having capacity, can revoke it "either by a signed writing or by personally informing the supervising health-care provider." If your parent can't sign, a written revocation must be signed for them and witnessed by two witnesses.
- Everything else. Your parent can revoke all or part of the rest "at any time and in any manner that communicates an intent to revoke."
- A newer directive. A later directive revokes an earlier one "to the extent of the conflict."
A copy of a directive or a revocation "has the same effect as the original," so giving copies to doctors keeps the record current.
What about the MOST form?
New Mexico's Medical Orders for Scope of Treatment (MOST) form, published by the Department of Health, records orders about resuscitation and other treatment. The form says it "is an advance healthcare directive or healthcare decision and must be honored in accordance with state law," and that it "must be signed by an authorized healthcare provider and the patient/decision maker to be valid." Authorized providers include a medical doctor, doctor of osteopathic medicine, advance practice nurse and physician assistant.
Frequently asked questions
Does a medical power of attorney need to be notarized in New Mexico?
No. Article 7A of the Uniform Health-Care Decisions Act has no notary requirement. A power of attorney for health care must be in writing and signed by your parent. The statute's optional form says two witnesses are recommended but not required, and its witness lines are marked optional.
Who can be a health care agent in New Mexico?
Your parent can name any individual they trust, with one rule in the statute: unless related to your parent by blood, marriage or adoption, the agent can't be an owner, operator or employee of a health-care institution where your parent is receiving care. The optional form also lets your parent name two alternate agents.
Where can I get a New Mexico advance directive form?
The optional form is printed in NMSA 24-7A-4, free on NMOneSource, the official statute compilation. The Aging and Long-Term Services Department also hosts a free packet with instructions. Using a form is optional; any writing your parent signs that names an agent can work. Give copies to the agent and doctors.
Who makes medical decisions in New Mexico if there's no agent?
A surrogate. If your parent lacks capacity and has no available agent or guardian, New Mexico's priority list starts with the spouse, then a long-term partner, an adult child, a parent, an adult sibling and a grandparent. If none is reasonably available, an adult who has shown special care and concern for your parent may act.
Is a medical power of attorney from another state valid in New Mexico?
Yes, if it followed that state's law. Under NMSA 24-7A-16, an advance directive, durable power of attorney for health care, living will or similar document executed in another state in compliance with its laws "shall be deemed valid and enforceable" in New Mexico as if it were properly made there.
Can my parent change their mind after signing?
Yes. While having capacity, your parent can revoke the agent's appointment by a signed writing or by telling the supervising health-care provider, and revoke the rest of the directive in any way that shows intent. A later directive revokes an earlier one where they conflict. Telling the doctor keeps the medical record current.
Getting started
A medical power of attorney only helps if it's signed while your parent can sign it and the right people have copies; in New Mexico, without one, the decision passes down a family priority list instead of to the person your parent would choose. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- NMSA 1978 Chapter 24, Health and Safety, Article 7A Uniform Health-Care Decisions Act: definitions (24-7A-1), directives and agents (24-7A-2), revocation (24-7A-3), the optional form (24-7A-4), surrogates (24-7A-5), capacity (24-7A-11) and out-of-state directives (24-7A-16); published by the New Mexico Compilation Commission.
- New Mexico Aging and Long-Term Services Department, Advance directive packet: instructions and a free form.
- New Mexico Department of Health, Medical Orders for Scope of Treatment (MOST): the MOST form and its instructions.
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