A “durable power of attorney” is a document signed by an individual that designates another person to take actions and make decisions on their behalf, including during times when they have lost the capacity to do so themself. This document can give someone the power to conduct financial transactions, make medical decisions, or some combination thereof. The person given power of attorney (called the agent or attorney-in-fact) has the authority to undertake these activities without needing a court order or other additional permissions.
Durable power of attorneys in Albuquerque have the ability to be as limited or extensive as the person granting the authority (called the principal) desires. They can limit the agent’s ability to make decisions, or they can provide their agent with wide discretion.
Granting someone durable power of attorney can be an invaluable part of estate, medical, and financial continuity planning. However, you want to ensure that your arrangements comply with relevant laws, align with your wishes, and account for any possible risks that could affect your plans. An experienced Albuquerque lawyer at New Mexico Financial Law can assist you with making these critical decisions.
Schedule a confidential, no-obligation consultation to discuss durable power of attorney with our Albuquerque law office today when you call us at 505-503-1637 or contact us online.
A durable power of attorney document can be created relatively easily through a form provided by the state of New Mexico. However, we strongly caution against using such a form without the guidance of a licensed attorney.
Why? Because such a simple form transmits a huge amount of power to your agent, especially when the power of attorney is durable. One might even describe the document as “deceptively” simple because of its objective to condense multiple possible forms into a single three-page document. One errant check can mean the difference between someone only being able to move money from your bank account versus being able to sell your primary residence.
While there are automatic checks against an agent exceeding the expected authority vested to them by the principal, the goal of drafting a durable power of attorney document is to provide as much clarity and specificity as possible.
When you make a customized durable power of attorney document with the help of an experienced Albuquerque law firm, you can refer to specific financial institutions, accounts, medical decisions, and providers in order to precisely outline where the agent should or should not have authority. For example, you can state that the attorney-in-fact can access an IRA provided through Vanguard but not the principal’s employer-subsidized 401(k) hosted by Charles Schwab. You can also specify that you would like the agent to make specific decisions for one type of life-prolonging care while leaving other decisions up to their discretion.
By working with an experienced lawyer, you can learn what language to include in your durable power of attorney so as to provide the perfect amount of control and guidance to your agent.
When you come to New Mexico Financial Law, an Albuquerque attorney can assist you with the following tasks:
In short, producing a one-of-a-kind durable power of attorney helps you sort through all available options and make the right choices for the future you would want. Reach out to our experienced Albuquerque law firm to learn more about your options, review the pivotal factors unique to your situation, and draft the best documents possible so that your health and your finances can be cared for.
A durable power of attorney is a formal legal document, one that designates an agent to act with the same authority and decision-making power as the drafting individual. The “durable” part means that the agent retains their abilities even when the principal (the person issuing power of attorney) is mentally, physically, or medically unable to act on their own accord.
Information provided by NASDAQ asserts that durable power of attorney is “an essential tool for long-term planning, particularly in situations involving health issues or aging.”
Having someone in place with durable power of attorney can allow for your wishes to be understood and carried out in moments where you can’t speak for yourself. In addition, you can know that your most critical medical and financial needs are taken care of, even during the most dire moments in your life.
There are two main types of durable power of attorney in Albuquerque:
This type of durable power of attorney allows the agent to consent to medical procedures, request (or deny) certain forms of treatment, and make important decisions on behalf of the principal.
If the principal does not limit their agent’s abilities, then the agent is able to do everything that the principal could do — including restricting the use of certain types of life-saving care.
Alternatively, the principal can provide specific examples or categories of decisions that the agent is allowed to make. In addition, the principal can provide instructions for specific decisions they would like made on their behalf, such as a request to exclusively receive non-opioid pain relief for their care and comfort.
Examples of the types of care decisions an agent with durable power of attorney for healthcare can make include:
Importantly, the principal can grant decision-making power (or provide explicit instructions for) any of the above areas — as well as anything not specifically covered in these broader categories. It bears repeating that, in the absence of any such direction (or of any restriction of their abilities), the principal’s attorney-in-fact is provided with full discretion to make any decision they feel is appropriate. Note, however, that the agent is expected to always act in the general interests of the principal while making decisions that align with their known preferences and values.
If the principal has completed an advance directive for health care (part of which includes their living will), then the agent does not have the authority to revoke or modify any of the principal’s preferences, directions, or requests to refuse care.
Providing someone with durable financial power of attorney allows them to handle transactions on your behalf, including when you are medically incapacitated.
The principal can limit these abilities to specific transactions (e.g., instructions to make a one-time transfer) or categories of transactions. Some examples of types of transactions an agent can make include those involving:
Like with medical decisions, the principal can explicitly allow or deny certain types of transactions to be made. The principal can also limit the agent to only make the types of transactions they expressly consent to. Otherwise, there is a legal presumption that the agent is allowed to conduct any and all types of transactions that have not been specifically limited by the principal, with limited exceptions.
If the principal does not specify when their durable power of attorney is supposed to activate, then the agent can begin acting immediately after the document is executed. The principal can also leave the agent’s power inactive until they decide to activate it to fulfill a specific purpose.
In some cases, the principal will specify that their durable power of attorney only comes into effect when they have been medically incapacitated. This arrangement is referred to as a “springing” power of attorney. For a springing durable power of attorney to activate, incapacity must be determined by at least two physicians (or a physician and another qualified medical professional). Once incapacity has been determined, it can activate immediately.
The principal can also specify how long the durable power of attorney is supposed to last. Usually, with a springing durable power of attorney, the powers deactivate the moment the principal regains capacity, as determined by medical personnel. The powers can also expire after a specific duration, if the principal wishes, or after a certain amount of medical improvement has been achieved.
Speak to your lawyer to figure out what arrangements make the most sense for your unique situation, given your preferences and the risks you want to prepare for.
Powers of attorney remain active until they are revoked or the principal dies. The power of attorney document can automatically terminate if conditions are met, such as if a time limit has passed, the principal returns from travel abroad, or they have recovered from an incapacitating condition.
Family members, loved ones, and other parties with an interest in the principal’s health, well-being, and financial security can also petition a court to issue an order to revoke power of attorney if they feel there is a compelling legal reason to do so (see NM Stat § 45-5B-116). For example, a court may revoke a durable power of attorney if an interested party can satisfactorily demonstrate that the agent is making decisions that enrich their own finances at the expense of the principal. Or, the interested party can prove that the agent is intentionally violating guidelines established by the principal.
Contesting power of attorney should be done quickly, and any contesting party should be prepared to clearly show how the agent’s actions go against the principal’s interests or their provided directives.
Creating a durable power of attorney should be done with care, precision, and the necessary legal knowledge. Without exercising due diligence, a person can make a mistake on their document or unintentionally create a situation that is risky for themselves, their finances, or their loved ones’ futures.
Get help preparing a durable power of attorney from our Albuquerque law firm when you call
505-503-1637 or contact us online to schedule a no-obligation consultation.
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