A non-durable power of attorney gives someone you designate (called your agent, proxy, or attorney-in-fact) to act in your place for important financial or medical situations — but only while you are medically conscious and mentally aware. Any non-durable power of attorney expires the moment you lose capacity, as determined by a medical professional.
Many people prefer giving their agent non-durable power of attorney because it means they will be able to monitor every activity the agent performs. Once they no longer have the ability to make their own decisions, the agent’s power is automatically terminated.
At the same time, consider the risk of not having a proxy available during times when you are incapacitated. To make sure your finances are managed and your wishes for medical care are respected, you may want to designate someone else with durable power of attorney. This arrangement means you can have someone closer to you, like a spouse or child, take over for your other agent right when you need it most.
You can settle on the perfect non-durable power of attorney arrangement for your unique needs when you meet with an experienced lawyer in New Mexico. Schedule a confidential consultation and estate plan review with New Mexico Financial & Family Law today when you call 505-503-1637 or contact us online.
A power of attorney gives someone the ability to represent you during times when you can’t be there. These arrangements can be convenient for individuals who do a lot of travel or who are constantly making financial decisions but lack the time to keep up with it all.
In addition, someone might give a professional service provider their power of attorney for certain situations. A financial advisor can be given power of attorney to optimize your investment portfolio, for example. A lawyer might have your power of attorney to close deals involving real estate, litigation, or important business matters.
Limiting your power of attorney to non-durable status ensures that you are able to keep a close eye on all of these activities. You have the option to monitor everything your attorney-in-fact does and terminate their powers or redirect them if they stray too far from your preferences.
Consult with an experienced lawyer to limit the powers of your agent even more precisely. Your lawyer can advise you on the best language to include in your power of attorney document to accomplish your exact goals.
They can also help you incorporate a non-durable power of attorney within your larger estate plans. That way, if you do decide to include an additional durable power of attorney, you can feel confident about the way the power activates and the abilities your agent will have.
With the right preparation, a non-durable power of attorney can help you accomplish all of your goals for this life — while a well-formed estate plan can achieve your goals for the next.
A power of attorney document authorizes someone to replace you and act with your full authority during certain situations or transactions.
Normally, under New Mexico law, all powers of attorney are automatically assumed to be durable (see NM Stat § 45-5B-104). However, the person granting power of attorney (called the principal) can include a statement expressing that they wish for the power to terminate when they have been incapacitated. This designation makes the power non-durable.
Usually, non-durable powers of attorney are granted to an agent for them to complete a specific transaction or set of tasks.
For example, someone might grant their lawyer power of attorney to help them close out a complicated real estate deal. The deal might require multiple meetings to sign documents, and the principal might not have the ability to attend every single one. Giving someone their power of attorney can let the transaction go through without unnecessary delays.
Less frequently, the individual given non-durable power of attorney will exercise it for an extended period of time. This type of arrangement is more common in small businesses where the owner or primary shareholder in the business does not wish to be present for all activities that require their signature or approval. They can instead delegate their authority to another party and ask them to carry out specific tasks on their behalf.
Refer to a lawyer in New Mexico for more guidance on when a non-durable power of attorney may be most appropriate — and whether a durable or springing power of attorney could be a better choice for your unique situation.
To give someone non-durable power of attorney, you have to create or fill out a document saying you delegate your authority to a specific agent. This agent has to be an individual. Unlike a trustee or other fiduciary positions, you can’t name an organization.
Your non-durable power of attorney document has to specify that their authority terminates when you become incapacitated. You can include specific language about what incapacitation means, according to your preferred definition.
As indicated above, a power of attorney that gives your lawyer, for instance, the ability to sign a settlement check while you are out of the country, is a non-durable power of attorney by its terms, as the scope is very narrow. A second non-durable clause is not necessary.
The document you create should specify all of the powers you wish to confer, as well as those you want to expressly deny. Speak to a lawyer to determine the best language to use and consider the situations you want covered in the document.
Once you are done with the document, you must sign and date it. New Mexico law does not require anyone to witness your signing of the document. At the same time, it does say that doing so in the presence of a notary can create a presumption that your own signature is genuine (see NM Stat § 45-5B-105). Having the document notarized is, therefore, highly recommended.
If you do not specify a starting condition in your power of attorney document, your agent assumes their responsibilities immediately.
However, the attorney-in-fact must sign a form acknowledging their responsibilities and consenting to the powers and duties you have given them.
If the principal does not want the non-durable power of attorney to take effect immediately, they can specify another starting condition. Examples of starting conditions can include a specific:
All powers of attorney terminate upon the death of the principal. At this time, the principal’s executor (called a personal representative in New Mexico) assumes control over their estate.
All non-durable powers of attorney terminate when the principal loses capacity.
Capacity can be determined by a medical professional, including a physician or a psychologist. The principal can set their own criteria for capacity, such as an inability to remember a series of words or numbers.
Otherwise, capacity will be determined by New Mexico’s statutes (NM Stat § 45-5B-109, §45-5B-102), which state that:
“incapacity” means inability of an individual to manage the individual’s estate or financial affairs, or both, because of gross mismanagement, as evidenced by recent behavior, of the individual’s income and resources or the individual’s medical inability to manage the individual’s income and resources that has led, or is likely in the near future to lead, to financial vulnerability.
A lack of capacity can also be determined by a lawyer, judge, or other legal professional in the event that the principal goes missing, is detained, or is unable to return to the United States after leaving the country.
In addition, the principal can indicate that they wish for the power of attorney to terminate under one of the following conditions:
The principal can also revoke the power of attorney authorization at any time. To do so, they would need to create a new document specifically listing the arrangement, naming their agent, and referring to the powers that they assumed.
The principal must then sign the document. They should do so in the presence of a notary, as before, so that their signature can be confirmed as legitimate.
You are welcome to select anyone who is a legal adult, meaning that they must be 18 or older and have the capacity to understand their responsibilities.
Anyone you select should be trustworthy, responsible, and capable of understanding your wishes.
Since their authority to act as your agent will only last as long as you have capacity, you technically have the ability to guide their activities at all times. However, this level of oversight is obviously not realistic, and it defeats the purpose of having an attorney-in-fact, except for limited transactions where you couldn’t be there in person to complete them.
It is highly recommended that you think carefully — not just about who gets your non-durable power of attorney but also how you give it to them. The powers you give them can have a huge impact on their performance. The more limited the power they have, the less likely they are to deviate from their expected duties.
At the same time, limiting your attorney-in-fact’s powers too much could inhibit their ability to perform all of the tasks you require of them. For this reason, it is important to have multiple conversations with your lawyer and with the person you wish to designate as your agent. You can go over the responsibilities given to them, what you expect, and what you can do to make their duties easier to uphold.
You are not limited to giving your non-durable power of attorney to one individual. Instead, you can designate multiple individuals who can act as your proxy.
The power of attorney document you create can specify how you expect your team of agents to work together. You can divide responsibilities among them, or you can let them delegate among themselves, according to their best judgment.
If you have multiple agents handling the same duties, you can require them to come to an agreement before acting. Or, you could name one agent as the senior designate, allowing them to override any objections from the remaining proxies.
You can also force agents to consult with a specific third party that you trust, such as a financial advisor or lawyer, before coming to a decision.
You should consider naming multiple successor agents in case the primary ones you chose are unavailable (or unwilling) to serve in their expected roles.
Yes, but the situation would be rare. Medical power of attorney typically comes into play in situations where the principal has become incapacitated.
However, a non-durable medical power of attorney could be beneficial in certain situations where the principal is unavailable but is required to physically sign something or otherwise be somewhere in person. For example, someone picking up lab results containing the personal health information (PHI) of the principal could be required to have power of attorney authorization before the lab releases the materials.
Talk with your lawyer to go over situations where it would make sense to give your agent non-durable medical power of attorney rather than just non-durable financial power of attorney.
New Mexico Financial & Family Law has assisted many clients throughout the state when it comes to their most sensitive life and business matters. We approach non-durable power of attorney authorization with care and deep consideration of your personal situation.
Our goal is to help you create a one-of-a-kind arrangement that’s perfectly suited to your needs and preferences.
Get started creating a non-durable power of attorney with the help of our experienced New Mexico lawyers. Call 505-503-1637 or contact us online to schedule a confidential appointment today.
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