A medical power of attorney authorizes an agent to act on your behalf when making major medical decisions and handling crucial aspects of your care. Usually, these individuals only provide their services when you have been incapacitated, but you are also able to authorize them to act before this occurs.
Called “power of attorney for health care” in New Mexico, these arrangements can be extremely beneficial in the event of a medical emergency. When coupled with a living will and other advance directives, your agent can have all of the information they need to make decisions that align with your wishes — even when you are not able to give your own input.
Reach out to our New Mexico lawyers to learn more about medical power of attorney and how to create the best arrangements for your unique circumstances. Schedule a confidential, no-obligation consultation today when you call New Mexico Financial & Family Law at 505-503-1637 or contact us online.
Usually, New Mexico medical power of attorney is only used in situations where the principal (the individual granting the power) has become medically incapacitated. In this situation, a spouse or other family member may be able to step in, but their abilities will be limited unless you authorize them with your medical power of attorney.
Of course, you can designate anyone you wish as your agent. This individual is often someone who is close to the principal, but it can also be a neutral third party, such as a lawyer or a medical professional not directly involved with their care.
You may also wish for your health care agent to act in your stead before you are incapacitated. This situation is common in families where one individual needs specialized care on a regular basis but lacks the energy to keep up with all of it themself. The principal can authorize their agent to help them fill out paperwork, give consent on procedures, pick up prescriptions, and perform other tasks.
In any situation, it’s important to think carefully about how you structure your medical power of attorney. You may want to direct the agent to refer to documents like your living will, for example. You may also want to limit their powers to only certain decisions.
New Mexico Financial & Family Law can assist you in these matters. By consulting with an experienced lawyer, you can get insights into the best arrangements, based on actual cases they’ve seen and handled.
You can also get highly specific about the language in your medical power of attorney document, customizing it to give your agent all of the abilities they need — while withholding the powers that make you most nervous.
Working with a lawyer is the best way to ensure that your wishes for medical power of attorney are well understood and clearly reflected in any document you create.
Someone can give their medical power of attorney to an agent by completing a document describing the arrangement.
On the document, the principal should clearly state their identity and name the person they want to act as their agent — also sometimes called their surrogate or an attorney-in-fact. They may even want to name a succession of agents in case one is unavailable, cannot be located, or declines their responsibilities.
The medical power of attorney document should clearly describe all of the abilities the principal wants their agent to assume on their behalf. For example, they could allow the principal to complete paperwork on their behalf but not make major medical decisions.
The principal should also clearly state when they want the medical power of attorney to activate. If they don’t specify, then the arrangement is assumed to be effective immediately (see NM Stat § 45-5B-109). However, they can instead create a “springing” power of attorney that only activates once they have become medically incapacitated, as determined by their physician or another health care professional.
In New Mexico, all powers of attorney are assumed to be durable (see NM Stat § 45-5B-104), meaning that they remain active even in the event that the principal becomes medically incapacitated. Non-durable medical powers of attorney are not recommended for most situations.
Once the principal is done creating their medical power of attorney document, they should sign it in the presence of a notary, who will also sign the document and apply their seal. Notarization is not technically required, but it is highly recommended since it is the most direct way of proving that the principal’s signature is genuine (see NM Stat § 45-5B-105).
A living will is a document that states your preferences for medical care in the event that you are incapacitated. You can indicate that you want a certain type of medication, for example. You can also refuse certain types of life-prolonging treatment, such as the insertion of a pacemaker to stave off heart failure.
Unfortunately, your living will only carries so much authority. Without someone who has the ability to actually consent to or deny certain forms of care, then providers may feel forced to use standard measures to save and prolong your life.
There may also be individuals (usually family members) who dispute the measures requested in the living will, sowing confusion among providers and discouraging others who may have the ability to make decisions.
For these reasons, it is important to designate a health care agent and give them medical power of attorney as part of your advance health care directives, in addition to creating a living will.
Your agent can act with the same authority as you, depending on the powers you give them. For example, they can consent to tests or certain forms of treatment. They can also access your medical records to aid them in making key decisions about your care. Their abilities are not limited — unless you want them to be.
Not technically. Your power of attorney cannot be given by anyone but you. This fact is why it’s so important to authorize someone to act as your agent in advance of any incapacitating condition.
If you do not have a medical power of attorney arranged, New Mexico law does allow certain individuals to act as your medical surrogate (see NM Stat § 24-7A-5). Unless you have specifically designated someone else to be your agent or surrogate, then your surrogate is automatically chosen from the first available person, in the following order of priority:
What’s important to recognize is that you can’t choose your own surrogate once you’ve been incapacitated. Your surrogate may also end up being limited in their abilities, such as being unable to access certain records because of privacy laws (see more about HIPAA below).
Your loved ones may end up being forced to request an order for guardianship from a court to make all the decisions needed. This process takes time, and there’s no guarantee that guardianship would be awarded. In the meantime, your health, dignity, and condition could suffer.
In any case, it’s always best to go ahead and designate a health care agent for yourself in advance. This designation allows you to choose the exact person you would want while describing all of the powers they would assume.
The Health Insurance Portability and Accountability Act (HIPAA) restricts providers’ abilities to share your protected health information with unauthorized individuals.
Your medical power of attorney document should clearly state that you give your agent permission to access this information. Include a clause mentioning HIPAA and stating that your agent is also a “personal representative” for the purposes of authorizing their access to your records.
You can also include a HIPAA waiver in your medical power of attorney document. This clause waives your rights to automatic privacy protections in the event your agent assumes responsibility for you.
In default form, a medical power of attorney gives your health care agent the ability to make all required decisions on your behalf. Granted, they are expected to make these decisions with respect to what you would want.
Clearly spelling out your preferences for care in a living will can make it easier for your agent to come to a decision. However, they may still have leeway to go against your requests if they genuinely feel you would do so, in your situation.
If this possibility bothers you, make sure to discuss your living will with your designated agent and other loved ones who are close to you. Explain your wishes and your reasons for wanting certain care decisions to be made. Ensure that everyone who might object to your care decisions has a copy of your living will, and consider making a record of conversations you’ve had with them in the past about your care.
These precautions can make decisions easier for your agent. Clearly explaining your reasoning can lessen their panic, guilt, or hesitation when it comes time to make difficult choices.
Know, too, that if you really wanted to, you can limit your agent’s abilities to go against your wishes. You can require them to follow instructions left in a living will or another advance directive document.
You should also speak to your primary care physician, who can issue a DNR or other orders on your behalf. The orders act as separate instructions to your care providers.
Again, make sure your agent and loved ones are informed of these orders and your beliefs on them. The more consistently your wishes can be understood across multiple forms of evidence — including your medical power of attorney authorization, living will, and conversations with loved ones — the less likely someone is to deviate from them.
You can revoke medical power of attorney any time that you retain the capacity to do so. All you have to do is create another document describing the arrangement and formally stating that you revoke it, in full.
You must then sign and date the revocation document, as before. You should also have it notarized.
Your agent retains medical power of attorney indefinitely unless your arrangement specifically states otherwise.
You can include a clause stating that your agent’s powers terminate the moment you regain consciousness or have enough capacity to state your wishes clearly. However, be aware that it can be difficult to prove capacity after a major medical event since it could take some time to regain full function.
Accordingly, carefully weigh your options for terminating medical power of attorney and the wording you use to invoke it. Discuss your wishes with a New Mexico lawyer to decide on the best ways to approach your situation and resume having total control over your care decisions.
Unless you limit their abilities, someone who has medical power of attorney has all of the same authority as you.
Common examples of ways they can assist you include:
If you have a relative or someone else in your life who may need you to step in and help make decisions for their care, you may want to receive medical power of attorney from them. They can assign you with power of attorney at any time that they still have capacity.
Remember that time is of the essence! Do not delay the process since a debilitating medical condition could develop at any time.
Further, a person must have the mental capacity to execute a power of attorney. When someone is failing physically, mental incapacity could also quickly occur. This is another reason to act quickly.
Refer to the section “What Is Medical Medical Power of Attorney, and How Does It Work in New Mexico?” above for more information on how your loved one can provide you with power of attorney to assist them when they need it most.
New Mexico Financial & Family Law can help you consider your medical power of attorney in light of your entire estate plan and wishes for the future. We can help you create a living will, assign someone (potentially the same person as your health care agent) with durable financial power of attorney, and ensure that your will is up-to-date and reflective of your current intentions.
Thinking about a possible future where you’re incapacitated can be unpleasant, but it’s always better to be prepared. Knowing that you have arrangements can give you confidence while helping your family navigate a difficult time in their lives.
Get prepared for whatever might happen, and create the best possible estate plan for your legacy and loved ones, when you schedule an appointment with our New Mexico law firm. Call 505-503-1637 or contact us online to schedule your confidential consultation today.
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