New Mexico Statutory General Power of Attorney with Durable Provisions

The state of New Mexico has adopted the Uniform Power of Attorney Act.

This Act lays out the permissible content and method for the grant of powers from a principal to an agent of his or her choice.

§ 45-5B-101. Short title

This act may be cited as the "Uniform Power of Attorney Act".

§ 45-5B-102. Definitions

As used in the Uniform Power of Attorney Act [46B-1-101 NMSA 1978]:

A. "agent" means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact or otherwise. The term includes an original agent, co-agent, successor agent and a person to which an agent's authority is delegated;

B. "durable", with respect to a power of attorney, means not terminated by the principal's incapacity;

C. "electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;

D. "good faith" means honesty in fact;

E. "incapacity" means inability of an individual to manage the individual's estate or financial affairs, or both, because:

(1) 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; or (2) the individual is: (a) missing; (b) detained, including incarcerated in a penal system; or (c) outside the United States and unable to return;

F. "person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or any other legal or commercial entity;

G. "power of attorney" means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term "power of attorney" is used;

H. "presently exercisable general power of appointment", with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal's estate, the principal's creditors or the creditors of the principal's estate. The term includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard or the passage of the specified period. The term does not include a power exercisable in a fiduciary capacity or only by will;

I. "principal" means an individual who grants authority to an agent in a power of attorney;

J. "property" means anything that may be the subject of ownership, whether real or personal, or legal or equitable, or any interest or right therein;

K. "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

L. "sign" means with present intent to authenticate or adopt a record: (1) to execute or adopt a tangible symbol; or (2) to attach to or logically associate with the record an electronic sound, symbol or process;

M. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; and

N. "stocks and bonds" means stocks, bonds, mutual funds and all other types of securities and financial instruments, whether held directly, indirectly or in any other manner. The term does not include commodity futures contracts and call or put options on stocks or stock indexes.

§ 45-5B-103. Applicability

The Uniform Power of Attorney Act [46B-1-101 NMSA 1978] applies to all powers of attorney except:

A. a power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction;

B. a power to make health care decisions;

C. a proxy or other delegation to exercise voting rights or management rights with respect to an entity; and

D. a power created on a form prescribed by a government or governmental subdivision, agency or instrumentality for a governmental purpose.

§ 45-5B-104. Power of attorney is durable

A power of attorney created under the Uniform Power of Attorney Act [46B-1-101 NMSA 1978] is durable unless it expressly provides that it is terminated by the incapacity of the principal.

§ 45-5B-105. Execution of power of attorney

A power of attorney must be signed by the principal or in the principal's conscious presence by another individual directed by the principal to sign the principal's name on the power of attorney. A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.

§ 45-5B-106. Validity of power of attorney

A. A power of attorney executed in this state on or after July 1, 2007 is valid if its execution complies with Section 105 [46B-1-105 NMSA 1978] of the Uniform Power of Attorney Act.

B. A power of attorney executed in this state before July 1, 2007 is valid if its execution complied with the law of this state as it existed at the time of execution.

C. A power of attorney executed other than in this state is valid in this state if, when the power of attorney was executed, the execution complied with:

(1) the law of the jurisdiction that determines the meaning and effect of the power of attorney pursuant to Section 107 [46B-1-107 NMSA 1978] of the Uniform Power of Attorney Act; or (2) the requirements for a military power of attorney pursuant to 10 U.S.C. Section 1044 b, as amended.

D. Except as otherwise provided by statute other than the Uniform Power of Attorney Act [46B-1-101 NMSA 1978], a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.

§ 45-5B-107. Meaning and effect of power of attorney The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.

§ 45-5B-108. Nomination of conservator or guardian; relation of agent to court-appointed fiduciary

A. In a power of attorney, a principal may nominate a conservator of the principal's estate or guardian of the principal's person for consideration by the court if protective proceedings for the principal's estate or person are begun after the principal executes the power of attorney. Except for good cause shown or disqualification, the court shall make its appointment in accordance with the principal's most recent nomination.

B. If, after a principal executes a power of attorney, a court appoints a conservator of the principal's estate or other fiduciary charged with the management of some or all of the principal's property, the agent is accountable to the fiduciary as well as to the principal. The power of attorney is not terminated and the agent's authority continues unless limited, suspended or terminated by the court after notice to, and an opportunity to be heard by, the agent and the principal.

§ 45-5B-109. With power of attorney effective

A. A power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.

B. If a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.

C. If a power of attorney becomes effective upon the principal's incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by:

(1) a physician or licensed psychologist that the principal is incapacitated within the meaning of Paragraph (1) of Subsection E of Section 102 [46B-1-102 NMSA 1978] of the Uniform Power of Attorney Act; or (2) an attorney at law, a judge or an appropriate governmental official that the principal is incapacitated within the meaning of Paragraph (2) of Subsection E of Section 102 of the Uniform Power of Attorney Act.

D. A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal's personal representative pursuant to the federal Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 U.S.C. Section 1320 d, as amended, and applicable regulations to obtain access to the principal's health care information and communicate with the principal's health care provider.

§ 45-5B-110. Termination of power of attorney or agent's authority

A. A power of attorney terminates when: (1) the principal dies; (2) the principal becomes incapacitated, if the power of attorney is not durable; (3) the principal revokes the power of attorney; (4) the power of attorney provides that it terminates; (5) the purpose of the power of attorney is accomplished; or (6) the principal revokes the agent's authority or the agent dies, becomes incapacitated or resigns and the power of attorney does not provide for another agent to act under the power of attorney.

B. An agent's authority terminates when: (1) the principal revokes the authority; (2) the agent dies, becomes incapacitated or resigns; (3) an action is filed for the dissolution or annulment of the agent's marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or (4) the power of attorney terminates.

C. Unless the power of attorney otherwise provides, an agent's authority is exercisable until the authority terminates under Subsection B of this section, notwithstanding a lapse of time since the execution of the power of attorney.

D. Termination of an agent's authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

E. Incapacity of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

F. The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.

§ 45-5B-111. Co-agents and successor agents

A. A principal may designate two or more persons to act as co-agents. Unless the power of attorney otherwise provides, each co-agent may exercise its authority independently.

B. A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve or declines to serve. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office or function. Unless the power of attorney otherwise provides, a successor agent:

(1) has the same authority as that granted to the original agent; and (2) may not act until all predecessor agents have resigned, died, become incapacitated, are no longer qualified to serve or have declined to serve.

C. Except as otherwise provided in the power of attorney and Subsection D of this section, an agent that does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, is not liable for the actions of the other agent.

D. An agent that has actual knowledge of a breach or imminent breach of fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated, take any action reasonably appropriate in the circumstances to safeguard the principal's best interest. An agent that fails to notify the principal or take action as required by this subsection is liable for the reasonably foreseeable damages that could have been avoided if the agent had notified the principal or taken such action.

§ 45-5B-112. Reimbursement and compensation of agent

Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances.

§ 45-5B-113. Agent's acceptance

Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.

§ 45-5B-114. Agent's duties

A. Notwithstanding provisions in the power of attorney, an agent that has accepted appointment shall: (1) act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest; (2) act in good faith; and (3) act only within the scope of authority granted in the power of attorney.

B. Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall: (1) act loyally for the principal's benefit; (2) act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest; (3) act with the care, competence and diligence ordinarily exercised by agents in similar circumstances; (4) keep a record of all receipts, disbursements and transactions made on behalf of the principal; (5) cooperate with a person that has authority to make health care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and otherwise act in the principal's best interest; and (6) attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including: (a) the value and nature of the principal's property; (b) the principal's foreseeable obligations and need for maintenance; (c) minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes; and (d) eligibility for a benefit, a program or assistance under a statute or regulation.

C. An agent that acts in good faith is not liable to any beneficiary of the principal's estate plan for failure to preserve the plan.

D. An agent that acts with care, competence and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.

E. If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence and diligence under the circumstances.

F. Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.

G. An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment or default of that person if the agent exercises care, competence and diligence in selecting and monitoring the person.

H. Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal or, upon the death of the principal, by the personal representative or successor in interest of the principal's estate. If so requested, and unless a shorter period of time is required by a law other than the Uniform Power of Attorney Act [46B-1-101 NMSA 1978], within thirty days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional thirty days.