New Mexico Laws on Living Wills and Other Health Care Directives

Every state has its own unique laws regarding the execution of documents which specify what types of medical care and treatment a person would like to receive or not receive in the event they are no longer able to voice their wishes due to illness or incapacity. Therefore, it is important to utilize the correct documents and rules for your state, if you wish to protect your family and your health care agent from enduring unforeseen trouble in the event of your incapacity. Using the correct forms can make an otherwise stressful time much easier on your family, your healthcare agent, and medical providers. The following is a brief discussion of New Mexico state laws on living wills and other health care directive documents. For help creating a New Mexico financial power of attorney and living directives, contact one of our expert New Mexico estate plan attorneys.

First, you may be asking why you need a living will or a medical power of attorney at all (in New Mexico, these documents are called “advanced health care directives”). The simple answer is that if you become incapable of directing your own medical care and treatment for any reason, advanced health care directives will ensure that you receive the type of treatment you would ask for if you could, and that you do not receive any treatment which you would not consent to. If you do not specify these wishes in writing and do not appoint someone you trust to oversee your medical care, and you do become incapacitated later in life, these important issues may be left to the decision of a judge who is entirely unfamiliar with your wishes, your family situation, etc.

Forms of Health Care Directives in New Mexico

In New Mexico, there are two types of health care directives every adult would be wise to have. The first is a document in which you name a person you trust to oversee your medical care if you should become unable to oversee it yourself. Such a document is usually referred to as a “durable power of attorney” for health care. The second document should include your written wishes and preferences regarding medical care and treatment, including what kind of treatment you would or would not like to be given in certain situations. This document is called a “living will.” In New Mexico however, these documents are conveniently combined into one form, referred to as an advanced health care directive (New Mexico statutes section 24-7A-4 provides an optional advanced health care directives form).

Who Can Make Your Health Care Decisions?

In New Mexico, you will name a specific person of your choice to make your health care decisions if it becomes necessary. This person is called your “agent.” Usually, people choose a spouse, relative, or friend to act as their agent. However, this is not required. According to New Mexico law, you are only forbidden from appointing a person who owns, operates, or is employed at a health care facility where you are receiving medical care, unless that person is a relative by blood, marriage, or adoption.

Other Considerations for Choosing an Agent in New Mexico

The most crucial consideration when choosing an agent is their trustworthiness and dependability. You must be able to rely on your agent to carry out your wishes, and act in your best interest if they are forced to make a decision which you have not addressed in your advanced health care directive. As such, you would be wise to choose a person who you think will be able to steadfastly assert your wishes even if other family members or friends argue against them. Essentially, you may want to choose someone who is good under pressure, as they will likely be acting (if at all) during a particularly stressful time for all involved.

Though you are not required to appoint a person who lives in New Mexico, you should be sure that your agent is at least willing to travel to the state if need be, and be available to stay for what may be an indefinite period of time in some cases.

When Will Your Agent Act on Your Behalf?

An agent will only be required to make decisions regarding your medical care if you become unable to do so for yourself. This may occur after an accident, during severe illness, or any other medical condition that leaves you unable to communicate your wishes. However, your agent cannot override your wishes if you are still able to convey what they are.

Should You Hire a Lawyer?

Though an advanced health care directive is not required to be executed by a licensed attorney, you should consider consulting with an experienced estate planning attorney if you would like to know more about executing the document, or if you want to be sure you have covered everything that should be covered. A good estate plan includes advanced directives, in addition to other estate planning tools like a financial power of attorney, a will, and possibly even a trust.