Mutual Wills or Last Will and Testaments for Unmarried Persons living together with Minor Children
Note:Â This summary is not intended to be an
all inclusive discussion of the law of wills in New Mexico, but does provide
basic and other information. This summary does not discuss hand written
wills.
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE NEW MEXICO STATUTES ANNOTATED
Power of Attorney
ADVANCE HEALTH CARE DIRECTIVE
(24-7A-1 through 24-7A-17 - Uniform Health-Care Decisions Act )
Definitions
An advance health-care directive is an individual instruction or a power of attorney for health care made while the individual has capacity.
An agent is an individual designated in a power of attorney for health care to make a health-care decision for the individual granting the power.
Health care is any care, treatment, service or procedure to maintain, diagnose or otherwise affect an individual's physical or mental condition.
A surrogate is an individual, other than a patient's agent or guardian, authorized under the Uniform Health-Care Decisions Act to make a health-care decision for the patient.
A ward is an adult or emancipated minor for whom a guardian has been appointed.
Advance health-care directives
An adult or emancipated minor has the right to make his or her own health-care decisions and may give an individual instruction.
The instruction may be oral or written; if oral, it must be made by personally informing a health-care provider.
The instruction may be limited to take effect only if a specified condition arises.
An adult or emancipated minor may execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity. The power must be in writing and signed by the principal and remains in effect notwithstanding the principal's later incapacity under the Uniform Health-Care Decisions Act.
The power of attorney may include individual instructions.
Agent
Unless related to the principal by blood, marriage or adoption, an agent may not be an owner, operator or employee of a health-care institution at which the principal is receiving care.
Unless otherwise specified in a power of attorney for health care, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity.
Unless otherwise specified in a written advance health-care directive, a determination that an individual lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent, shall be made according to the provisions of 24-7A-11 of the Uniform Health-Care Decisions Act.
An agent must make a health-care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent must make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.
A health-care decision made by an agent for a principal is effective without judicial approval.
A written advance health-care directive may include the individual's nomination of a guardian of the person.
Revocation
An individual may revoke the designation of an agent either by a signed writing or by personally informing the supervising health-care provider. If the individual cannot sign, a written revocation must be signed for the individual and be witnessed by two witnesses, each of whom has signed at the direction and in the presence of the individual and of each other.
An individual may revoke all or part of an advance health-care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke.
A health-care provider, agent, guardian or surrogate who is informed of a revocation must promptly communicate the fact of the revocation to the supervising health-care provider and to any health-care institution at which the patient is receiving care.
The filing of a petition for or a decree of annulment, divorce, dissolution of marriage or legal separation revokes a previous designation of a spouse as agent unless otherwise specified in the decree or in a power of attorney for health care. A designation revoked solely by this subsection is revived by the individual's remarriage to the former spouse, by a nullification of the divorce, annulment or legal separation or by the dismissal or withdrawal, with the individual's consent, of a petition seeking annulment, divorce, dissolution of marriage or legal separation.
An advance health-care directive that conflicts with an earlier advance health-care directive revokes the earlier directive to the extent of the conflict.
Form
The statutory form may, but need not, be used to create an advance health-care directive.
The Uniform Health-Care Decisions Act governs the effect of any writing used to create an advance health-care directive.
An individual may complete or modify all or any part of the statutory form.
Decisions for Unemancipated Minors.
If there is disagreement regarding the decision to withhold or withdraw life sustaining treatment for an unemancipated minor, the provisions of Section 24-7A-11 NMSA 1978 apply.
Effect of Copy
A copy of a written advance health-care directive, revocation of an advance health-care directive or designation or disqualification of a surrogate has the same effect as the original.
