Advance Health Care Directive in New Mexico

Quick Summary: Advance Health Care Directive in New Mexico

• An advance health care directive gives you control over your care decisions after you have been incapacitated by designating an agent and providing instructions for care.
• An advance directive includes a health care power of attorney and a “living will,” which is another name for your instructions for care.
• Your advance health care directive only activates after your primary physician and another qualified medical professional determine that you are incapacitated.
• An advance health care directive can be created by signing a document containing clear and specific instructions. Notarization is optional but recommended. 

Need immediate help? Contact New Mexico Financial & Estate Planning Attorneys.

An advance health care directive is a critical document to have at any age. Creating one is especially recommended for individuals who are thinking about retirement, working on a comprehensive estate plan, dealing with chronic health issues, or engaging in end-of-life planning in New Mexico.

New Mexico Financial & Estate Planning Attorneys can help you construct an advance health care directive that accurately reflects your wishes across a wide range of possible scenarios. We’ll word your document carefully while describing the arrangements you would want with clarity and specificity. 

With this document in hand, both you and your family can have greater peace of mind. Get started creating your advance directive and a healthcare power of attorney in New Mexico when you call (505) 503-1637 or contact us online to schedule a no-obligation appointment.

What Is an Advance Directive? Should I Talk to an Attorney to Create One?

An advance directive is a medical document that activates after you have lost the ability to communicate your health care wishes. It combines the following three sub-documents:

• Instructions for health care: This document describes the types of care you would (and wouldn’t) want after you have been incapacitated, including the scenarios where you are unlikely to recover.

• Medical power of attorney: Also referred to as a “healthcare power of attorney” in New Mexico, this document designates someone as your healthcare agent, giving them permission to review your health information and make care decisions on your behalf.
• Primary physician designation: This part of your directive names your primary care physician. Before the remaining components of your directive activate, this physician must be consulted to determine if you have become incapacitated.

Hiring an attorney is not a technical requirement for creating an advance directive. However, consulting with an attorney is recommended to ensure that your wishes are accurately reflected and sufficiently described in your documentation.

When you meet with your attorney, they can go over the specific protections and requirements for an advance health care directive, as described in the New Mexico Uniform Health-Care Decisions Act. Your lawyer will describe the different components of your directive to help you understand how each one gives you a different type of control over your care.

As part of your appointment, your attorney will listen closely as you describe your wishes for care across various scenarios. For example, they can help you describe the types of life-prolonging care you would want if there were a chance of your full recovery, as opposed to a situation where your recovery was unlikely.

A lawyer can also help you ensure your advance directive is reflected and incorporated within the other components of your estate plan, including your will, trusts, and financial power of attorney.

NM Advance Directive vs. Medical Power of Attorney

Your advance directive will include a medical power of attorney. This document designates an individual to act as your official healthcare agent in New Mexico. As your designated healthcare agent, this individual may be able to:

• Review private healthcare documentation related to your current condition, diagnosis, and treatment plan, including test results and any relevant medical history
• Decide on the providers who will diagnose you, administer treatment, and otherwise manage your care
• Request, consent to, or deny specific courses of treatment for your condition, including medications, surgical procedures, and other therapies
• Request, consent to, or deny specific courses of life-prolonging care
• Describe the psychiatric care you would like to receive if you are technically able to communicate but unable to form coherent or rational thoughts because of a temporary or permanent psychiatric condition
• Ensure your unique care needs are accommodated by communicating details like medication allergies, religious or personal preferences, and your relevant medical history to care teams
• Advocate for your wishes for organ donation, the handling of your remains, and your memorialization in the event of a terminal condition

Importantly, you can create specific instructions guiding your healthcare decision-maker, such as requesting specific medications or therapies. You can also offer guidelines to help your agent come to their own decision based on your values and preferences. You may even give your agent full discretion to arrive at their own decisions within specific treatment areas or even across all areas of medical care.

Speak to a lawyer offering New Mexico power of attorney services to discuss your preferences and any guidelines or limitations you would like to place upon your healthcare agent.

Keep in mind that you may need to rely on a backup or successor agent if your first choice is unable or unwilling to serve. Your attorney can help you include language and instructions that can ensure any agent is given the information they need to uphold your wishes for medical care.

What Is a New Mexico Living Will?

Every advance health care directive should include instructions for medical care (sometimes described as a New Mexico living will). These instructions describe the types of care you would like to receive in situations where you are incapacitated.

Your instructions for care can provide different directives depending on whether you face one of the following situations: 

1. You are temporarily incapacitated and expected to recover.
2. Your condition is likely to remain stable, but you aren’t expected to regain consciousness.
3. Your condition is likely to be terminal.

Your instructions for care can direct your New Mexico healthcare proxy and provider teams on whether you would want the following types of life-prolonging treatments:

• Intubation and use of a ventilator (a breathing machine)
• Artificial nutrition via a feeding tube
• Artificial hydration via an IV
• Prolonged use of antibiotics
• Defibrillation and/or CPR
• Emergency insertion of a pacemaker

How to Create an Advance Directive in New Mexico

The requirements for creating an advance directive in New Mexico are less stringent compared to other types of estate planning documents. An adult individual with capacity merely has to complete a set of documents that makes their wishes clear. Then, they have to sign it. 

Unlike a will, there’s no requirement to have the document witnessed. You also don’t need to have it notarized, although doing so is recommended.

You can start the process by reviewing a statutory advance health care directive. You can then consult with an experienced attorney to better understand the document and customize your instructions in a way that accommodates your unique beliefs, values, and estate plan.

Amending or Revoking an Advance Directive in New Mexico

You can revoke an advance health care directive at any time while you have capacity. Your revocation can be declared in writing or issued verbally to your health care provider.

To ensure that any changes to your care instructions, power of attorney, or physician designation are clearly recorded and legally recognized, it is advisable to complete and sign a new version of your advance health care directive after revoking an older version.

When Does My Advance Directive Activate?

Your advance directive only activates after you have lost medical capacity. This can mean:

• You are fully unconscious but unable to communicate
• You have been medically sedated for an extended period because of a condition or an upcoming procedure
• You have lost the ability to communicate or think rationally because of a neurodegenerative or psychological condition
• You are too weak or confused to reliably communicate because of a debilitating condition

Two physicians must be consulted before an official determination of incapacity can be made. One of these physicians must be the physician you designate in your advance directive.

What Happens If I Become Incapacitated Without an Advance Directive?

In most cases, a surrogate decision-maker will be selected. The individual chosen will be prioritized based on their relationship to you, with spouses (or long-term romantic partners with a similar status to a spouse) taking the highest priority. If a partner is unavailable to (or wishes not to) serve, an adult child, parent, sibling, or grandparent may be chosen instead.

Sometimes, family members may disagree on a course of treatment. Or, providers will not consent to certain care decisions without clear instructions from the patient instructions made while they had the capacity to make rational decisions. In these cases, a court may need to appoint a guardian who has the authority to make care decisions on your behalf while you are incapacitated.

Unlike a health care agent, a guardian has complete authority and discretion over the patient’s care decisions. While the guardian is expected to consider any recorded or stated preferences the patient made in the past, they get to make the final decision. As such, their choices may end up differing from the ones the patient would have made for themself, especially in the absence of clear guiding instructions.

Reach out to an attorney to learn more about the disadvantages of New Mexico guardianship vs POA.

Get Assistance Planning for Your Advance Health Care Directive

New Mexico Financial & Estate Planning Attorneys can help you create an advance health care directive at any time. We’ll walk you through the options available and make a range of recommendations based on your situation, stated preferences, and goals.

It’s important to make the needed documents while you still have capacity, so consider creating an advance directive as an essential component of estate planning. Get started creating your own advance health care directive during a no obligation appointment when you call (505) 503-1637 or contact us online to schedule a consultation.