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An advance directive is a legal document created by an individual who has the capacity to make their own medical decisions. It outlines their preferences for medical treatment in case they become incapacitated.
This advance directive form can include a living will, which specifies their wishes regarding end-of-life treatments, and a durable power of attorney for health care (medical power of attorney), in which they appoint someone to make decisions on their behalf.
Creating a health care advance directive is a proactive step in advance care planning to ensure one's medical wishes are respected.
Signing Requirements for New Mexico Advance Health Care Directive
The signing requirements for a valid health care advance directive, as outlined in Sections 24-7A-2(B) and 24-7A-4(part 3) of the New Mexico Statutes, are as follows:
Signing Requirements for New Mexico
The individual executing the directive must be an adult or an emancipated minor with the capacity to make health care decisions.
While individual instructions can be oral, a power of attorney for health care must be in writing and signed by the principal (the person creating the directive).
Having two witnesses sign the document is recommended but not mandatory.
New Mexico Advance Health Care Directive Revocation & Changing
The New Mexico advance directive becomes effective when the health care provider determines that the principal is no longer able to make health care decisions on their own. This typically happens when the principal is incapacitated due to illness, injury, or any terminal condition that impairs their ability to communicate or understand their health care options.
According to Section 24-7A-3, the principal can revoke the advance directive for health care as long as they still have the mental capacity to do so.
They can revoke advance directive in the following ways:
Directive Revocation & Changing
Sign a written notice or tell the health care provider directly
Cancel all or part of the directive at any time and in any way that shows intent to revoke
Divorce or legal separation automatically revokes a spouse as the agent unless specified otherwise
Revocation will become effective when the health care provider or agent informs the principal’s care team about the revocation.
Additional Legal Considerations for New Mexico Advance Health Care Directive
As stated in Section 24-7A-6, if an appointed agent is not available to act on principal’s behalf, a family member will step in, starting with the spouse, then a long-term partner, adult child, parent, sibling, or grandparent.
If none of the family members are available, someone close to the principal, such as a personal friend who knows his/her preferences well, can act as the surrogate.
According to Section 24-7A-6, when a court appoints a guardian, they must follow the health care wishes that the principal made when they were able to decide unless the court says otherwise. If the principal appointed a health care agent, the agent’s decisions take priority unless the court directs differently.
How to Choose a Health Care Agent in New Mexico
To choose a New Mexico health care proxy, it is important to consider someone you fully trust, such as your family member, friend, or attorney. That person should understand your values, and preferences and be willing to cope with stressful situations and act in your best interest.
It is important that an agent is someone who is at least 18 years old and of sound mind. On the other hand, your health care provider or someone working at your medical facility cannot be your agent unless they are related to you.
What Happens if You Don’t Have an Advance Directive in New Mexico?
If you don't have an advance directive in New Mexico, your medical wishes may not be fulfilled as you intend since you cannot express them. However, while oral instructions are valid and can be honored, they lack the clarity and precision of written directives.
So, without a written advance directive and designated agent, there may be confusion or disagreements among family members and healthcare providers about your preferences. As a result, ensure your wishes are respected by having a written advance directive and an appointed agent advocate for your care.