When addressing these circumstances, certain documents can fall under the umbrella term “advanced health care directive.” The person that executes an advanced directive is called the principal, and the person(s) designated to assist or make decisions for the principal is called an “agent.” An advanced health care directive may only be executed when the principal has the capacity to understand and appreciate the nature and consequences of proposed health care decisions.
A properly drafted “advanced directive” is a document that outlines the principal’s instructions for medical decisions to medical providers and expresses the principal’s wishes should the principal become incapacitated or reach an end-of-life stage. (Specific laws and rules pertaining to advanced directives in New Mexico can be found at N.M. Stat. Ann. § 24-7A-4) An advanced directive is effective when executed unless the principal provides that it becomes effective at a future date or upon the occurrence of a future event or upon incapacity.
A “Power of Attorney for Health Care” or “Medical Power of Attorney” allows you to name an agent to express your wishes for medical decisions. It is very important to designate an agent and successor agent that you can trust. An agent serves in the role of a fiduciary and must fulfill certain legal responsibilities. You should engage the services of an attorney that can explain the role of an agent and what it means to serve as a fiduciary.
It is very important to have a properly drafted power of attorney in which you state your own preferences regarding medical care decisions. If a situation falls outside the expressed preferences, or a particular preference is unknown, then your agent has the authority to make decisions based on what the agent thinks your wishes might be.
Another document to be aware of is known as a “living will.” It describes the care decisions you wish to receive should you become incapacitated, if you are likely near the end of your life, or there is little medical hope of you recovering. Your living will states medical care preferences, such as whether you would like to receive CPR should your vital functions cease, whether you would want dialysis for kidney failure, whether you would want to be intubated and put on a ventilator, and whether you would prefer the utmost level of life-saving care or would rather have palliative care meant to maximize comfort.
Another option is a Supported Decision-Making agreement, executed while the person has the capacity. This document serves as a written agreement with certain persons, who will assist an individual with making decisions.
In the event you do not have the capacity to make health care decisions and have not designated an agent to make decisions, a family member or other interested person may petition the district court to appoint a guardian to make decisions regarding health care, residential placement, care, supervision, and safety and welfare over the person. It’s important to express your values and desires for residence, health care, for example, so that if you have a guardian appointed, they will know what your desires were.
45-5B-101 et seq.
While you have the capacity to make decisions regarding your finances, you may execute Financial Power of Attorney and/or a revocable living trust.
As the principal, you may designate an agent in a Financial Power of Attorney to have authority to make financial decisions on your behalf immediately, on a designated date, or once you are incapacitated. You must be very careful to designate an agent with integrity whom you know you can rely upon to make sound decisions, manage your finances effectively, and not do anything for the sake of their own personal gain.
It’s important to understand the terms of the power of attorney and consider whether you want to limit the authority or grant full authority to an agent. You will also want to consider a successor agent in the event the first agent is unable (or unwilling) to serve, or dies.
However, it may be more beneficial for individuals who have more than one piece of real property and multiple heirs to establish a revocable living trust while they are still alive and have the capacity. This arrangement forms a legal entity where your holdings are held by the trust. The trust formation document can stipulate conditions under which a trustee will be designated to manage it, such as who you would preferably rely upon to be the trustee. Power of attorney can be established within a living trust formation document, as well. Note that it is often best to fund the trust in advance of incapacitation, as arrangements to fund the trust only in the event of incapacitation may be complicated or blocked by certain legal actions.
A living trust is not necessary for many individuals, but those who have property, a business operation, or extensive investments may wish to establish a revocable living trust in addition to appointing an agent through a financial power of attorney.
First, know that financial exploitation is legally considered elder abuse, which is a crime. Anyone who suspects that financial exploitation is going on should immediately report the situation to New Mexico Adult Protective Services or local law enforcement. A report can be made whether it is from the person being exploited, a family member of that person, or even just an outside party who has been made aware of the situation.
Second, know that there is no 100% foolproof way to prevent all possible abuse from occurring. Even someone who was deeply trusted may have a change of character years later. Instead of trying to prevent all financial abuse scenarios, individuals should focus on reducing the risk of exploitation through general means. These include periodically reviewing the available mechanisms they have in place to protect them should they gradually lose capacity as they age or as illness affects them.
Important mechanisms to know about include:
There comes a point in all of our lives when we will be unable to take care of ourselves, or when doing so would prove incredibly difficult. It’s very important to write down your desires and wishes for the future; it is unlikely requests made verbally will be upheld in Court.
For those of us fortunate enough to be able to prepare in advance for this moment, we should all also realize that we cannot 100% predict our future situation. Because of this uncertainty, we will inevitably have to depend upon others to assist us. “Others” may include designated legal proxies, trustees, legal and financial advisors, family members, trusted friends, and professional care staff.
Consult an experienced estate planning attorney, while you have testamentary capacity, to learn how you can document your desires, properly plan ahead, appropriately designate beneficiaries, and place important documents in one organized place.
Recognizing that we cannot prepare for every situation and that we will need to at some point rely on others, here are some general guidelines for preparing for your own care at an advanced age:
The best way to have your wishes known for how your remains will be handled is to use several methods to communicate. First, the most important is to clearly write down what your wishes are. New Mexico has a cremation form if you wish to be cremated.
Second, speak with your spouse, children, and closest family members periodically about the decision you wish to make. Make your conversations consistent with what you have written down. These conversations establish a pattern that would make it more difficult for someone to raise an objection following your death and claim you had different wishes than those expressed in any document — legal or otherwise.
Describe your preferences in writing as part of your advanced directive planning. This plan can include comprehensive instructions on decisions, like what to do when you are medically incapacitated and how your remains will be handled upon your death.
In addition, list your preferences in your last will and testament, which means that these wishes must be legally considered before they can be disregarded or altered in any way.
Have your advanced directive and your will prepared by an experienced estate planning attorney to ensure that they are clear, comprehensive, and enforceable to the extent possible.
Those who wish to fund the handling of their remains in advance can do so through a Totten Trust, which will pay funds to a designated beneficiary upon the trust creator’s death. Such an arrangement can supplement life insurance benefits family members receive for burial/cremation, or it can directly fund a service of your choice for handling your remains.
Make sure to mention the Totten Trust in your will and to review the terms often, especially if the intended beneficiary is a mortician service that has since gone out of business or been bought out by another company.
Similar to the above answer, your wishes should be known through three main methods:
You should have your advanced directive, trust, and will prepared by an experienced, qualified estate planning attorney to ensure that they are enforceable and that there is a minimal chance of interference upon your death.
Often times when wills, advance directives, and trusts are prepared without the assistance of an attorney, they are frequently unclear and unenforceable. As a result, the last desires may not be able to be granted. This can also result in unnecessary cost and delay incurred on the heirs, not to mention the risk that your last wishes will not be honored as intended.
When someone creates an estate plan, they can designate the individual they wish to serve as their estate’s personal representative. This individual can then petition the probate court to be…
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