Santa Fe Durable Power of Attorney

A durable power of attorney gives someone you trust the ability to handle your financial affairs or make medical decisions for you when you can’t do so yourself. These important documents vest someone with substantial legal authority. Because you cannot monitor their actions, you should take the time to select someone with integrity. You can also guide their decisions and abilities using a carefully crafted POA agreement. Get in touch with an experienced lawyer in Santa Fe to discuss power of attorney and make the best arrangements for your unique situation.

While giving someone durable power of attorney may seem risky, the reality is that not having it can be even riskier. There is a strong chance that if you are incapacitated, your spouse, children, or other family members won’t be able to access important accounts. They may also have difficulty managing your care if they are unable to consent to medical treatment plans without your prior consent.

Having a durable power of attorney gives the people you trust most in life the ability to help you — and your family — when the time comes. You can discuss your options for Santa Fe durable power of attorney, including what abilities you want your agent to have, when you get in touch with New Mexico Financial Law. Reach out to schedule an appointment with an experienced Santa Fe estate planning lawyer by calling (505) 503-1637 or contacting us online today.

What Is a Sante Fe Durable Power of Attorney?

A Santa Fe power of attorney is a document that authorizes someone else (known as your agent or attorney-in-fact) to act on your behalf with the same authority you would have. When someone (known as the principal) gives power of attorney to an agent, that agent is able to then handle financial transactions or make medical decisions in the place of the principal.

NASDAQ provides the following durable power of attorney definition:

A durable power of attorney remains in effect even if the principal becomes incapacitated. This feature makes it an essential tool for long-term planning, particularly in situations involving health issues or aging.

The abilities given to someone who receives Santa Fe durable power of attorney depend on the type of power of attorney issued:

• Financial power of attorney: Grants permission to access the principal’s accounts and other assets to conduct transactions as if they were the principal themself

• Medical power of attorney: Gives the agent authority to make medical decisions, including choosing providers, deciding on courses of treatment, consenting to procedures, accessing medical records, and denying certain forms of care

One person can have both types of power of attorney, although it isn’t unusual for a principal to separate these abilities between two different people.

A power of attorney is considered durable unless the principal specifically states in the document that it is rendered ineffective when they become incapacitated (NM Stat § 45-5B-104).

How Can I Make a Power of Attorney?

Any document can work as a power of attorney, technically, so long as it makes it clear that the person signing it intends to delegate authority to an agent.

Many organizations provide statutory power of attorney forms, including New Mexico’s district courts. You can use these forms as the actual power of attorney, or you can refer to them when making a custom power of attorney document with the help of a Santa Fe estate planning law firm.

To ensure that your power of attorney is effective, make sure that it clearly indicates the following:

• The person you intend to serve as your agent
• The scope of their authority, including whether you grant them general power of attorney or if you intend to limit their authority to certain activities
• Any special instructions or arrangements you wish to add
• The date or condition in which the power of attorney becomes effective (if no date is provided, it is effective immediately, per NM Stat § 45-5B-109)
• Whether you wish to limit the power of attorney to make it non-durable

After you have settled on the appropriate language and arrangements for your Santa Fe durable power of attorney, you need to sign it. It then becomes effective immediately, or upon the date or condition you listed on the document.

Do I Need to Have My Power of Attorney Notarized and Witnessed?

Unlike a New Mexico will, you do not need to have your signing of the power of attorney witnessed.

However, you may wish to have the power of attorney notarized, as this backs up your signature and can help prove its authenticity should your power of attorney be challenged in court. In fact, New Mexico law (NM Stat § 45-5B-105) encourages notarization for this exact purpose.

The notary and witnessing requirements aren’t rigid, meaning that a power of attorney could technically be effective without either. Even still, notarization is explicitly encouraged under the Uniform Power of Attorney Act (UPOAA), which has been adopted by New Mexico and 31 other states. Having the document witnessed can also serve to back up its authenticity even further, at the principal’s discretion.

How Can I Revoke a Santa Fe Durable Power of Attorney Once It’s Been Signed?

A power of attorney is automatically revoked upon the principal’s death. The principal can also set conditions in the power of attorney to have it automatically revoked, such as:

• Their incapacitation
• The passing of a specific date
• The passing of another event specified by the principal
• The completion of a task (or tasks) explicitly described by the principal as the reason for issuing the power of attorney
• If the agent is married to the principal, the act of filing for a divorce or legal separation (unless the document specifies that this does not result in automatic termination)

In addition, the principal can decide to revoke their power of attorney at any time while they have the mental capacity to do so. Ideally, the principal will execute a new document describing the revocation and have it notarized. Optionally, they can perform a “revocatory act,” which can include “burning, tearing, canceling, or destroying” the physical power of attorney document while they have capacity. 

The principal can also specify another method of revocation, which can involve something as simple as sending a text message or email to the agent.

It is generally advisable to provide a written, signed, and notarized document declaring revocation of the POA, regardless of any other methods used to revoke it.

In addition to revoking the document itself, the principal should also notify any financial institution, medical provider, or other organization that has recognized the agent’s authority. Sending notices to these organizations can ensure that the agent is unable to exercise their authority after it has been legally revoked.

What Abilities Does My Agent Receive When I Give Them Power of Attorney?

Your agent is limited by the actions and abilities you consent to when you create your Santa Fe durable power of attorney.

Scope of Authority Under a General Financial Power of Attorney

If you do not specify what the agent’s abilities are, you could be granting them general power of attorney authority (NM Stat § 45-5B-201). For durable financial power of attorney, these capabilities include nearly any transaction involving:

• Real estate
• Loans and bank accounts
• Stocks, bonds, commodities, and options
• Insurance and annuities
• Operation of a business
• Personal property
• Government benefits, including military-related benefits programs
• Trust and estates
• Legal claims and litigation
• Personal and family maintenance
• Retirement plans
• Taxes

However, the agent does not have the authority to do any of the following, unless you expressly grant them permission under your financial power of attorney:

• Give away any personal or real property as a gift
• Alter rights of survivorship, such as in a joint tenancy agreement
• Create, revoke, or alter a living trust
• Change or add beneficiary designations
• Delegate their authority as an agent to another party
• Refuse or disclaim property, including a power of appointment
• Exercise fiduciary powers vested in the principal

Your agent’s abilities can be as limited or broad as you want them to be. You should balance their authority based on the risks you want to avoid — meaning both the situations where you may need their help in an emergency and situations that could lead to undesirable consequences that are difficult to halt or reverse. 

Refer to a Santa Fe law firm for assistance with incapacity planning. They can help you determine which powers may be appropriate for your agent to wield, versus those you would rather limit.

Scope of Authority Under a General Power of Attorney for Healthcare

Your agent is limited to the abilities you give them under your Santa Fe durable power of attorney for healthcare.

When you complete your document, be sure to indicate what abilities your agent will have as it concerns your healthcare decisions. Note that, in many situations, a principal will require their agent to make certain choices. Other times, the agent could have the ability to make a choice for themself. These preferences can be stated on the power of attorney itself as well as in their instructions for care — also known as a “living will.”

Examples of decisions an agent may be able to make include:

• Which provider (e.g., hospital) to seek care from
• What treating physician, specialist, or other licensed professional to trust for the principal’s care
• Whether the principal should receive pain relief, including what types
• Whether the principal would prefer to have their life prolonged through the following measures, in a situation where their recovery was not likely or imminent:
  • Artificial nutrition (i.e., a feeding tube)
  • Artificial hydration (i.e., an IV)
  • A mechanical ventilator (i.e., a breathing machine)
  • CPR
  • Defibrillation
  • The surgical insertion of a pacemaker or other medical device
  • Antibiotics and other pharmaceutical regimens
• Upon the death of the principal, whether they wish to donate their organs

A principal’s instructions will be carried out when they have been declared incapacitated by two physicians or individuals otherwise qualified to make such a determination. The principal can nominate a specific physician who must be consulted as part of their advance healthcare directive.

What Are My Agent’s Duties Under a Santa Fe Power of Attorney?

Agents given authority by a principal have a legal obligation to act for the benefit of the principal and within the scope of authority they were given.

Per New Mexico law (NM Stat § 45-5B-114), other agent duties under POA include:

• Trying their best to act in line with what they could assume the principal would want or expect
• Acting in good faith, generally
• Avoiding actions that would cause the principal harm
• Avoiding conflicts of interest
• Exercising general due diligence and care
• Keeping detailed records of their activities, including financial transactions, medical decisions, etc.
• Acting for the benefit of the principal’s family and other loved ones, to the extent possible and expected under the power of attorney
• Taking efforts to preserve the value of the principal’s finances and protect their estate plan
• Cooperating with other parties given authority by the principal or in whom the principal placed a great deal of trust

Anyone who has a stake in the principal’s estate or who was given authority by them — including a guardian, trustee, conservator, or any other fiduciary — can compel the agent to produce documentation and receipts of their actions. The principal can also require the agent to make reports to a certain party. A government agency may also intervene on behalf of the principal if there is suspicion that the agent has breached their duties in a way that could cause lasting harm.

Get Help Making Arrangements for Santa Fe Durable Power of Attorney

Appointing an agent using a durable power of attorney is an important element of incapacity planning. At the same time, you want to be careful to create an arrangement that is most likely to result in your benefit while avoiding unnecessary risks.

You can go over your options for durable power of attorney, along with other matters pertaining to estate planning in Santa Fe, by reaching out to New Mexico Financial Law. We can also help you with updating your will, forming a trust, or making other arrangements for the benefit of your estate, such as by exploring probate alternatives.

Get seasoned guidance and client-focused service you can depend upon when you call (505) 503-1637 or contact us online to schedule a no-obligation discussion and case review today.