As used in the Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978]:

1. "advance health-care directive" means an individual instruction or a power of attorney for health care made, in either case, while the individual has capacity;
2. "agent" means an individual designated in a power of attorney for health care to make a health-care decision for the individual granting the power;
3. "capacity" means an individual's ability to understand and appreciate the nature and consequences of proposed health care, including its significant benefits, risks and alternatives to proposed health care and to make and communicate an informed health-care decision. A determination of lack of capacity shall be made only according to the provisions of Section 24-7A-11 NMSA 1978;
4. "emancipated minor" means a person between the ages of sixteen and eighteen who has been married, who is on active duty in the armed forces or who has been declared by court order to be emancipated;
5. "guardian" means a judicially appointed guardian or conservator having authority to make a healthcare decision for an individual;
6. "health care" means any care, treatment, service or procedure to maintain, diagnose or otherwise affect an individual's physical or mental condition;
7. "health-care decision" means a decision made by an individual or the individual's agent, guardian or surrogate, regarding the individual's health care, including:
   
   1. selection and discharge of health-care providers and institutions;
   2. approval or disapproval of diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate;
   3. directions relating to life-sustaining treatment, including withholding or withdrawing life sustaining treatment and the termination of life support; and
   4. directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care;
8. "health-care institution" means an institution, facility or agency licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business;
9. "health-care provider" means an individual licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession;
10. "individual instruction" means an individual's direction concerning a health-care decision for the individual, made while the individual has capacity;
11. "life-sustaining treatment" means any medical treatment or procedure without which the individual is likely to die within a relatively short time, as determined to a reasonable degree of medical certainty by the primary physician;
12. "person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency or instrumentality or any other legal or commercial entity;
13. "physician" means an individual authorized to practice medicine or osteopathy;
14. "power of attorney for health care" means the designation of an agent to make health-care decisions for the individual granting the power, made while the individual has capacity;
15. "primary physician" means a physician designated by an individual or the individual's agent, guardian or surrogate to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility;
16. "principal" means an adult or emancipated minor who, while having capacity, has made a power of attorney for health care by which he delegates his right to make health-care decisions for himself to an agent;
17. "qualified health-care professional" means a health-care provider who is a physician, physician assistant, nurse practitioner, nurse, psychologist or social worker;
18. "reasonably available" means readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health-care needs;
19. "state" means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico or a territory or insular possession subject to the jurisdiction of the United States;
20. "supervising health-care provider" means the primary physician or, if there is no primary physician or the primary physician is not reasonably available, the health-care provider who has undertaken primary responsibility for an individual's health care;
21. "surrogate" means 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; and
22. "ward" means an adult or emancipated minor for whom a guardian has been appointed.

1. An adult or emancipated minor, while having capacity, has the right to make his or her own healthcare 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.
2. An adult or emancipated minor, while having capacity, 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. The power remains in effect notwithstanding the principal's later incapacity under the Uniform Health-Care Decisions Act [24- 7A-1 NMSA 1978] or Article 5 of the Uniform Probate Code [Chapter 45, Article 5 NMSA 1978]. The power may include individual instructions. 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.
3. 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.
4. 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 Section 11 [24-7A-11 NMSA 1978] of the Uniform Health-Care Decisions Act.
5. An agent shall 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 shall 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.
6. A health-care decision made by an agent for a principal is effective without judicial approval.
7. A written advance health-care directive may include the individual's nomination of a guardian of the person.

1. No insurer or other provider of benefits regulated by the New Mexico Insurance Code [59A-1-1 NMSA 1978] or a state agency shall require a person to execute or revoke an advance health-care directive as a condition for membership in, being insured for or receiving coverage or benefits under an insurance contract or plan.
2. No insurer may condition the sale, procurement or issuance of a policy, plan, contract, certificate or other evidence of coverage, or entry into a pension, profit-sharing, retirement, employment or similar benefit plan, upon the execution or revocation of an advance health-care directive; nor shall the existence of an advance health-care directive modify the terms of an existing policy, plan, contract, certificate or other evidence of coverage of insurance.
3. The provisions of this section shall be enforced by the superintendent of insurance under the New Mexico Insurance Code.

1. An individual, while having capacity, 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.
2. An individual, while having capacity, 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.
3. A health-care provider, agent, guardian or surrogate who is informed of a revocation shall 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.
4. 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.
5. An advance health-care directive that conflicts with an earlier advance health-care directive revokes the earlier directive to the extent of the conflict.

OPTIONAL ADVANCE HEALTH-CARE DIRECTIVE

Explanation

You have the right to give instructions about your own health care. You also have the right to name someone else to make health-care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding the designation of your primary physician.

THIS FORM IS OPTIONAL. Each paragraph and word of this form is also optional. If you use this form, you may cross out, complete or modify all or any part of it. You are free to use a different form. If you use this form, be sure to sign it and date it.

PART 1 of this form is a power of attorney for health care. PART 1 lets you name another individual as agent to make health-care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may also name an alternate agent to act for you if your first choice is not willing, able or reasonably available to make decisions for you. Unless related to you, your agent may not be an owner, operator or employee of a health-care institution at which you are receiving care.

Unless the form you sign limits the authority of your agent, your agent may make all health-care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health-care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:

1. (a) consent or refuse consent to any care, treatment, service or procedure to maintain, diagnose or otherwise affect a physical or mental condition;
2. (b) select or discharge health-care providers and institutions;
3. (c) approve or disapprove diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate; and
4. (d) direct the provision, withholding or withdrawal of artificial nutrition and hydration and all other forms of health care.

PART 2 of this form lets you give specific instructions about any aspect of your health care. Choices are provided for you to express your wishes regarding life-sustaining treatment, including the provision of artificial nutrition and hydration, as well as the provision of pain relief. In addition, you may express your wishes regarding whether you want to make an anatomical gift of some or all of your organs and tissue. Space is also provided for you to add to the choices you have made or for you to write out any additional wishes.

PART 3 of this form lets you designate a physician to have primary responsibility for your health care.

After completing this form, sign and date the form at the end. It is recommended but not required that you request two other individuals to sign as witnesses. Give a copy of the signed and completed form to your physician, to any other health-care providers you may have, to any health-care institution at which you are receiving care and to any health-care agents you have named. You should talk to the person you have named as agent to make sure that he or she understands your wishes and is willing to take the responsibility.

You have the right to revoke this advance health-care directive or replace this form at any time.

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PART 1 POWER OF ATTORNEY FOR HEALTH CARE

(1) DESIGNATION OF AGENT: I designate the following individual as my agent to make health-care decisions for me:

(name of individual you choose as agent)

(address) (city) (state) (zip code)

(home phone) (work phone)

If I revoke my agent's authority or if my agent is not willing, able or reasonably available to make a health-care decision for me, I designate as my first alternate agent:

(name of individual you choose as first alternate agent)

(address) (city) (state) (zip code)

(home phone) (work phone)

If I revoke the authority of my agent and first alternate agent or if neither is willing, able or reasonably available to make a health-care decision for me, I designate as my second alternate agent:

(name of individual you choose as second alternate agent)

(address) (city) (state) (zip code)

(home phone) (work phone)

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(2) AGENT'S AUTHORITY: My agent is authorized to obtain and review medical records, reports and information about me and to make all health-care decisions for me, including decisions to provide, withhold or withdraw artificial nutrition, hydration and all other forms of health care to keep me alive, except as I state here:

(Add additional sheets if needed.)

(3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's authority becomes effective when my primary physician and one other qualified health-care professional determine that I am unable to make my own health-care decisions. If I initial this box [ ], my agent's authority to make health-care decisions for me takes effect immediately.

(4) AGENT'S OBLIGATION: My agent shall make health-care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health-care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.

(5) NOMINATION OF GUARDIAN: If a guardian of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able or reasonably available to act as guardian, I nominate the alternate agents whom I have named, in the order designated.

PART 2

INSTRUCTIONS FOR HEALTH CARE

If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out this part of the form. If you do fill out this part of the form, you may cross out any wording you do not want.

(6) END-OF-LIFE DECISIONS: If I am unable to make or communicate decisions regarding my health care, and IF

(i) I have an incurable or irreversible condition that will result in my death within a relatively short time, OR (ii) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, OR (iii) the likely risks and burdens of treatment would outweigh the expected benefits, THEN I direct that my health-care providers and others involved in my care provide, withhold or withdraw treatment in accordance with the choice I have initialed below in one of the following three boxes:

[ ] I CHOOSE NOT To Prolong

Life I do not want my life to be prolonged.

[ ] I CHOOSE To Prolong

Life I want my life to be prolonged as long as possible within the limits of generally accepted health-care standards.

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[ ] I CHOOSE To Let My Agent

Decide My agent under my power of attorney for health care may make life-sustaining treatment decisions for me.

(7) ARTIFICIAL NUTRITION AND HYDRATION: If I have chosen above NOT to prolong life, I also specify

by marking my initials below: [ ] I DO NOT want artificial nutrition OR [ ] I DO want artificial nutrition. [ ] I DO NOT want artificial hydration unless required for my comfort OR

[ ] I DO want artificial hydration.

(8) RELIEF FROM PAIN: Regardless of the choices I have made in this form and except as I state in the following space, I direct that the best medical care possible to keep me clean, comfortable and free of pain or discomfort be provided at all times so that my dignity is maintained, even if this care hastens my death:

(9) ANATOMICAL GIFT DESIGNATION: Upon my death I specify as marked below whether I choose to make

an anatomical gift of all or some of my organs or tissue: [ ] I CHOOSE to make an anatomical gift of all of my organs or tissue to be determined by medical suitability at the time of death, and artificial support may be maintained long enough for organs to be removed.

[ ] I CHOOSE to make a partial anatomical gift of some of my organs and tissue as specified below, and artificial support may be maintained long enough for organs to be removed.

[ ] I REFUSE to make an anatomical gift of any of my organs or

tissue. [ ] I CHOOSE to let my agent decide.

(10) OTHER WISHES: (If you wish to write your own instructions, or if you wish to add to the instructions you have given above, you may do so here.) I direct that:

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(Add additional sheets if needed.)

PART 3

PRIMARY PHYSICIAN

(11) I designate the following physician as my primary physician:

(name of physician)

(address) (city) (state) (zip code)

(phone)

If the physician I have designated above is not willing, able or reasonably available to act as my primary physician, I designate the following physician as my primary physician:

(name of physician)

(address) (city) (state) (zip code)

(phone)

(12) EFFECT OF COPY: A copy of this form has the same effect as the original.

(13) REVOCATION: I understand that I may revoke this OPTIONAL ADVANCE HEALTH-CARE DIRECTIVE at any time, and that if I revoke it, I should promptly notify my supervising health-care provider and any health-care institution where I am receiving care and any others to whom I have given copies of this power of attorney. I understand that I may revoke the designation of an agent either by a signed writing or by personally informing the supervising health-care provider.

(14) SIGNATURES: Sign and date the form here:

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(date) (address) (city) (state) (Optional) SIGNATURES OF WITNESSES:

First witness (print your name) (address)

(city) (state) (signature of witness) (date)

(sign your name) (print your name) (your social security number)

Second witness (print your name) (address)

(city) (state) (signature of witness) (date)".

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1. A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined according to the provisions of Section 24-7A-11 NMSA 1978 to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.
2. An adult or emancipated minor, while having capacity, may designate any individual to act as surrogate by personally informing the supervising health-care provider. In the absence of a designation or if the designee is not reasonably available, any member of the following classes of the patient's family who is reasonably available, in descending order of priority, may act as surrogate:
   
   1. the spouse, unless legally separated or unless there is a pending petition for annulment, divorce, dissolution of marriage or legal separation;
   2. an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other's wellbeing;
   3. an adult child;
   4. a parent;
   5. an adult brother or sister; or
   6. a grandparent.
3. If none of the individuals eligible to act as surrogate under Subsection B of this section is reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values and who is reasonably available may act as surrogate.
4. A surrogate shall communicate his assumption of authority as promptly as practicable to the patient, to members of the patient's family specified in Subsection B of this section who can be readily contacted and to the supervising health-care provider.
5. If more than one member of a class assumes authority to act as surrogate and they do not agree on a health-care decision and the supervising health-care provider is so informed, the supervising health-care provider shall comply with the decision of a majority of the members of that class who have communicated their views to the provider. If the class is evenly divided concerning the health-care decision and the supervising health-care provider is so informed, that class and all individuals having lower priority are disqualified from making the decision.
6. A surrogate shall make a health-care decision in accordance with the patient's individual instructions, if any, and other wishes to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate's determination of the patient's best interest. In determining the patient's best interest, the surrogate shall consider the patient's personal values to the extent known to the surrogate.
7. A health-care decision made by a surrogate for a patient shall not be made solely on the basis of the patient's pre-existing physical or medical condition or pre-existing or projected disability.
8. A health-care decision made by a surrogate for a patient is effective without judicial approval. A patient, at any time, may disqualify any person, including a member of the patient's family, from acting as the patient's surrogate by a signed writing or by personally informing a health-care provider of the disqualification. A health-care provider who is informed by the patient of a disqualification shall promptly communicate the fact of disqualification to the supervising health-care provider and to any health-care institution at which the patient is receiving care.
9. Unless related to the patient by blood, marriage or adoption, a surrogate may not be an owner, operator or employee of a health-care institution at which the patient is receiving care.
10. A supervising health-care provider may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority.

1. A guardian shall comply with the ward's individual instructions and may not revoke the ward's advance health-care directive unless the appointing court expressly so authorizes after notice to the agent and the ward.
2. A health-care decision of an agent appointed by an individual having capacity takes precedence over that of a guardian, unless the appointing court expressly directs otherwise after notice to the agent and the ward.
3. Subject to the provisions of Subsections A and B of this section, a health-care decision made by a guardian for the ward is effective without judicial approval, if the appointing court has expressly authorized the guardian to make health-care decisions for the ward, in accordance with the provisions of Section 45-5-312 NMSA 1978, after notice to the ward and any agent.

1. Except as otherwise provided by law, a parent or guardian of an unemancipated minor may make that minor's health-care decisions.
2. A parent or guardian of an unemancipated minor shall have the authority to withhold or withdraw life-sustaining treatment for the unemancipated minor, subject to the provisions of this section and the standards for surrogate decision making for adults provided for in the Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978].
3. Subject to the provisions of Subsection B of this section, if an unemancipated minor has capacity sufficient to understand the nature of that unemancipated minor's medical condition, the risks and benefits of treatment and the contemplated decision to withhold or withdraw life-sustaining treatment, that unemancipated minor shall have the authority to withhold or withdraw life-sustaining treatment.
4. For purposes of Subsection C of this section, a determination of the mental and emotional capacity of an unemancipated minor shall be determined by two qualified health-care professionals, one of whom shall be the unemancipated minor's primary physician and the other of whom shall be a physician that works with unemancipated minors of the minor's age in the ordinary course of that physician's healthcare practice. If the unemancipated minor lacks capacity due to mental illness or developmental disability, one of the qualified health-care professionals shall be a person whose training and expertise aid in the assessment of functional impairment.
5. If the unemancipated minor's primary physician has reason to believe that a parent or guardian of an unemancipated minor, including a non-custodial parent, has not been informed of a decision to withhold or withdraw life-sustaining treatment, the primary physician shall make reasonable efforts to determine if the uninformed parent or guardian has maintained substantial and continuous contact with the unemancipated minor and, if so, shall make reasonable efforts to notify that parent or guardian before implementing a decision.
6. 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 shall apply.
7. For purposes of this section, "unemancipated minor" means a person at or under the age of fifteen.

1. Before implementing a health-care decision made for a patient, a supervising health-care provider shall promptly communicate to the patient the decision made and the identity of the person making the decision.
2. A supervising health-care provider who knows of the existence of an advance health-care directive, a revocation of an advance health-care directive, a challenge to a determination of lack of capacity or a designation or disqualification of a surrogate shall promptly record its existence in the patient's healthcare record and, if it is in writing, shall request a copy and, if one is furnished, shall arrange for its maintenance in the health-care record.
3. A supervising health-care provider who makes or is informed of a determination that a patient lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent, guardian or surrogate shall promptly record the determination in the patient's health-care record and communicate the determination to the patient and to any person then authorized to make health-care decisions for the patient.
4. Except as provided in Subsections E and F of this section, a health-care provider or health-care institution providing care to a patient shall comply:
   
   1. before and after the patient is determined to lack capacity, with an individual instruction of the patient made while the patient had capacity;
   2. with a reasonable interpretation of that instruction made by a person then authorized to make health-care decisions for the patient; and
   3. with a health-care decision for the patient that is not contrary to an individual instruction of the patient and is made by a person then authorized to make health-care decisions for the patient, to the same extent as if the decision had been made by the patient while having capacity.
5. A health-care provider may decline to comply with an individual instruction or health-care decision for reasons of conscience. A health-care institution may decline to comply with an individual instruction or health-care decision if the instruction or decision is contrary to a policy of the health-care institution that is expressly based on reasons of conscience and if the policy was timely communicated to the patient or to a person then authorized to make health-care decisions for the patient.
6. A health-care provider or health-care institution may decline to comply with an individual instruction or health-care decision that requires medically ineffective health care or health care contrary to generally accepted health-care standards applicable to the health-care provider or health-care institution. "Medically ineffective health care" means treatment that would not offer the patient any significant benefit, as determined by a physician.
7. A health-care provider or health-care institution that declines to comply with an individual instruction or health-care decision shall:
   
   1. promptly so inform the patient, if possible, and any person then authorized to make health-care decisions for the patient;
   2. provide continuing care to the patient until a transfer can be effected; and
   3. unless the patient or person then authorized to make health-care decisions for the patient refuses assistance, immediately make all reasonable efforts to assist in the transfer of the patient to another health-care provider or health-care institution that is willing to comply with the instruction or decision.
8. A health-care provider or health-care institution may not require or prohibit the execution or revocation of an advance health-care directive as a condition for providing health care.
9. The Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978] does not require or permit a healthcare institution or health-care provider to provide any type of health care for which the health-care institution or health-care provider is not licensed, certified or otherwise authorized or permitted by law to provide.

Unless otherwise specified in an advance health-care directive, a person then authorized to make healthcare decisions for a patient has the same rights as the patient to request, receive, examine, copy and consent to the disclosure of medical or any other health-care information.

1. A health-care provider or health-care institution acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care provider or health-care institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for:
   
   1. complying or attempting to comply with a health-care decision of a person apparently having authority to make a health-care decision for a patient, including a decision to withhold or withdraw health care or make an anatomical gift;
   2. declining to comply with a health-care decision of a person based on a belief that the person then lacked authority;
   3. complying or attempting to comply with an advance health-care directive and assuming that the directive was valid when made and has not been revoked or terminated;
   4. declining to comply with a health-care directive as permitted by Subsection E or F of Section 24-7A-7 NMSA 1978; or
   5. complying or attempting to comply with any other provision of the Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978].
2. An individual acting as agent, guardian or surrogate under the Uniform Health-Care Decisions Act is not subject to civil or criminal liability or to discipline for unprofessional conduct for health-care decisions made in good faith.

1. A health-care provider or health-care institution that intentionally violates the Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978] is subject to liability to the aggrieved individual for damages of five thousand dollars ($5,000) or actual damages resulting from the violation, whichever is greater, plus reasonable attorney fees.
2. A person who intentionally falsifies, forges, conceals, defaces or obliterates an individual's advance health-care directive or a revocation of an advance health-care directive without the individual's consent or a person who coerces or fraudulently induces an individual to give, revoke or not give or revoke an advance health-care directive is subject to liability to that individual for damages of five thousand dollars ($5,000) or actual damages resulting from the action, whichever is greater, plus reasonable attorney fees.
3. The damages provided in this section are in addition to other types of relief available under other law, including civil and criminal law and law providing for disciplinary procedures.

1. The Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978] does not affect the right of an individual to make health-care decisions while having capacity to do so.
2. An individual is presumed to have capacity to make a health-care decision, to give or revoke an advance health-care directive and to designate a surrogate.
3. 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 by two qualified health-care professionals, one of whom shall be the primary physician. If the lack of capacity is determined to exist because of mental illness or developmental disability, one of the qualified health-care professionals shall be a person whosetraining and expertise aid in the assessment of functional impairment.
4. An individual shall not be determined to lack capacity solely on the basis that the individual chooses not to accept the treatment recommended by a health-care provider.
5. An individual, at any time, may challenge a determination that the individual lacks capacity by a signed writing or by personally informing a health-care provider of the challenge. A health-care provider who is informed by the individual of a challenge shall promptly communicate the fact of the challenge to the supervising health-care provider and to any health-care institution at which the individual is receiving care. Such a challenge shall prevail unless otherwise ordered by the court in a proceeding brought pursuant to the provisions of Section 24-7A-14 NMSA 1978.
6. A determination of lack of capacity under the Uniform Health-Care Decisions Act shall not be evidence of incapacity under the provisions of Article 5 [Chapter 45, Article 5 NMSA 1978] of the Uniform Probate Code.

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.

1. The Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978] does not create a presumption concerning the intention of an individual who has not made or who has revoked an advance health-care directive.
2. Death resulting from the withholding or withdrawal of health care in accordance with the Uniform Health-Care Decisions Act does not for any purpose:
   
   1. constitute a suicide, a homicide or other crime; or
   2. legally impair or invalidate a governing instrument, notwithstanding any term of the governing instrument to the contrary. "Governing instrument" means a deed, will, trust, insurance or annuity policy, account with POD (payment on death designation), security registered in beneficiary form (TOD), pension, profit-sharing, retirement, employment or similar benefit plan, instrument creating or exercising a power of appointment or a dispositive, appointive or nominative instrument of any similar type.
3. The Uniform Health-Care Decisions Act does not authorize mercy killing, assisted suicide, euthanasia or the provision, withholding or withdrawal of health care, to the extent prohibited by other statutes of this state.
4. The Uniform Health-Care Decisions Act does not authorize or require a health-care provider or health-care institution to provide health care contrary to generally accepted health-care standards applicable to the health-care provider or health-care institution.
5. The Uniform Health-Care Decisions Act does not authorize an agent or surrogate to consent to the admission of an individual to a mental health-care facility. If the individual's written advance health-care directive expressly permits treatment in a mental health-care facility, the agent or surrogate may present the individual to a facility for evaluation for admission.
6. The Uniform Health-Care Decisions Act does not affect other statutes of this state governing treatment for mental illness of an individual admitted to a mental health-care institution.

On petition of a patient, the patient's agent, guardian or surrogate, a health-care provider or health-care institution involved with the patient's care, an individual described in Subsection B or C of Section 24- 7A-5 NMSA 1978, the district court may enjoin or direct a health-care decision or order other equitable relief. A proceeding under this section is governed by the Rules of Civil Procedure for the District Courts.

The Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978] shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject matter of that act among states enacting it.

1. An advance health-care directive is valid for purposes of the Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978] if it complies with the provisions of that act, regardless of when or where executed or communicated.
2. The Uniform Health-Care Decisions Act does not impair a guardianship, living will, durable power of attorney, right-to-die statement or declaration or other advance directive for health-care decisions that is in effect before July 1, 1995.
3. Any advance directive, durable power of attorney for heath care decisions, living will, right-to-die statement or declaration or similar document that is executed in another state or jurisdiction in compliance with the laws of that state or jurisdiction shall be deemed valid and enforceable in this state to the same extent as if it were properly made in this state.

Sections 1 through 17 [24-7A-1 to 24-7A-17 NMSA 1978] of this act may be cited as the "Uniform Health-Care Decisions Act".

If any provision of the Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of that act which can be given effect without the invalid provision or application, and to this end the provisions of that act are severable.

This act may be cited as the "Mental Health Care Treatment Decisions Act".

The purpose of the Mental Health Care Treatment Decisions Act [24-7B-1 NMSA 1978] is to ensure appropriate care and treatment of persons with behavioral health needs in the community.

As used in the Mental Health Care Treatment Decisions Act [24-7B-1 NMSA 1978]:

1. "advance directive for mental health treatment" means an individual instruction or power of attorney for mental health treatment made pursuant to the Mental Health Care Treatment Decisions Act;
2. "agent" means an individual designated in a power of attorney for mental health treatment to make a mental health treatment decision for the individual granting the power;
3. "capacity" means an individual's ability to understand and appreciate the nature and consequences of proposed mental health treatment, including significant benefits and risks and alternatives to the proposed mental health treatment, and to make and communicate an informed mental health treatment decision. A written determination or certification of lack of capacity shall be made only according to the provisions of the Mental Health Care Treatment Decisions Act;
4. "emancipated minor" means a person between the ages of sixteen and eighteen who has been married, who is on active duty in the armed forces or who has been declared by court order to be emancipated;
5. "guardian" means a judicially appointed guardian having authority to make a mental health decision for an individual;
6. "individual instruction" means an individual's direction concerning a mental health treatment decision for the individual, made while the individual has capacity, which is to be implemented when the individual has been determined to lack capacity;
7. "mental health treatment" means services provided for the prevention of, amelioration of symptoms of or recovery from mental illness or emotional disturbance, including electroconvulsive treatment, treatment with medication, counseling, rehabilitation services or evaluation for admission to a facility for care or treatment of persons with mental illness, if required;
8. "mental health treatment decision" means a decision made by an individual or the individual's agent or guardian regarding the individual's mental health treatment, including:
   
   1. selection and discharge of health care or mental health treatment providers and institutions;
   2. approval or disapproval of diagnostic tests, programs of medication and mental health treatment; and
   3. directions relating to mental health treatment;
9. "mental health treatment facility" means an institution, facility or agency licensed, certified or otherwise authorized or permitted by law to provide mental health treatment in the ordinary course of business;
10. "mental health treatment provider" or "health care provider" means an individual licensed, certified or otherwise authorized or permitted by law to provide diagnosis or mental health treatment in the ordinary course of business or practice of a profession;
11. "mental illness" means a substantial disorder of a person's emotional process, thoughts or cognition that grossly impairs judgment, behavior or capacity to recognize reality, but "mental illness" does not mean a developmental disability;
12. "power of attorney for mental health treatment" means the designation of an agent to make mental health treatment decisions for the individual granting the power, made while the individual has capacity;
13. "primary health care professional" means a qualified health care professional designated by an individual or the individual's agent or guardian to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated qualified health care professional is not reasonably available, a qualified health care professional who undertakes that responsibility;
14. "principal" means an adult or emancipated minor who, while having capacity, has made a power of attorney for mental health treatment by which the adult or emancipated minor delegates the right to make mental health treatment decisions for that adult or emancipated minor to an agent;
15. "qualified health care professional" means a licensed health care provider who is a physician, physician assistant, nurse practitioner, nurse or psychologist;
16. "reasonably available" means able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's mental health treatment needs;
17. "supervising health care provider" means the primary qualified health care professional or, if the primary qualified health care professional is not reasonably available, the health care provider who has undertaken primary responsibility for an individual's health care; and

"ward" means an adult or emancipated minor for whom a guardian has been appointed.

1. An adult or emancipated minor, while having capacity, has the right to make the adult or emancipated minor's own mental health treatment decisions and may give an individual instruction. The individual instruction may be oral or written; if oral, it shall be made by personally informing a health care provider. The individual instruction may be limited to take effect only if a specified condition arises.
2. An adult or emancipated minor, while having capacity, may execute a power of attorney for mental health treatment that may authorize the agent to make any mental health treatment decision the principal could have made while having capacity. The power of attorney for mental health treatment shall be in writing signed by the principal and witnessed pursuant to Subsections I and J of this section. The power of attorney for mental health treatment shall remain in effect notwithstanding the principal's later incapacity under the Mental Health Care Treatment Decisions Act [24-7B-1 NMSA 1978] or Article 5 [45-5-101 NMSA 1978] of the Uniform Probate Code. The power of attorney for mental health treatment may include individual instructions. Unless related to the principal by blood, marriage or adoption, an agent may not be an attending qualified health care professional or an employee of the
   qualified health care professional or an owner, operator or employee of a mental health treatment facility at which the principal is receiving care.
3. Unless otherwise specified in a power of attorney for mental health treatment, the authority of an agent becomes effective only upon certification that the principal lacks capacity and ceases to be effective upon a determination that the principal has recovered capacity.
4. Unless otherwise specified in a written advance directive for mental health treatment, written certification 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 the Mental Health Care Treatment Decisions Act.
5. An agent shall make a mental health treatment decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall 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.
6. A mental health treatment decision made by an agent for a principal is effective without judicial approval.
7. A written advance directive for mental health treatment may include the individual's nomination of a choice of guardian of the individual.
8. The fact that an individual has executed an advance directive for mental health treatment shall not constitute an indication of mental illness.
9. A written advance directive for mental health treatment is valid only if it is signed by the principal and a witness who is at least eighteen years of age and who attests that the principal:
   
   1. is known to the witness;
   2. signed the advance directive for mental health treatment in the witness' presence;
   3. appears to have capacity; and
   4. is not acting under duress, fraud or undue influence.
10. For purposes of the advance directive for mental health treatment, the witness shall not be:
    
    1. an agent of the principal;
    2. related to the principal by blood or marriage;
    3. entitled to any part of the principal's estate or have a claim against the principal's estate;
    4. the attending qualified health care professional; or
    5. an owner, operator or employee of a mental health treatment facility at which the principal is receiving care or of any parent organization of the mental health treatment facility.

1. The Mental Health Care Treatment Decisions Act [24-7B-1 NMSA 1978] does not affect the right of an individual to make mental health treatment decisions while having the capacity to do so.
2. An individual is presumed to have capacity to make a mental health treatment decision, to give an advance directive for mental health treatment or to revoke an advance directive for mental health treatment.
3. An individual shall not be determined to lack capacity solely on the basis that the individual chooses not to accept the treatment recommended by a health care provider.
4. An individual, at any time, may challenge a determination that the individual lacks capacity by a signed writing or by personally informing a health care provider of the challenge. A health care provider who is informed by the individual of a challenge shall promptly communicate the fact of the challenge to the supervising health care provider and to any mental health treatment facility at which the individual is receiving care. Such a challenge shall prevail unless the agent or the treating mental health care provider obtains an order in district court finding the principal does not have the capacity to make mental health treatment decisions.
5. A determination of lack of capacity under the Mental Health Care Treatment Decisions Act shall not be evidence of incapacity under the provisions of Article 5 [45-5-101 NMSA 1978] of the Uniform Probate Code.
6. A determination of incapacity shall only be made by two persons, a qualified health care professional and a mental health treatment provider. If after the examination the principal is determined to lack capacity and is in need of mental health treatment, a written certification, substantially in the form provided in Subsection G of this section, of the principal's condition shall be made a part of the principal's medical record.
7. The following certification of the examination of a principal determining whether the principal is in need of mental health treatment and whether the principal does or does not lack capacity may be used by examiners:

   “OPTIONAL EXAMINER'S CERTIFICATION”

   We, the undersigned, have made an examination of ___________, and do hereby certify that we havemade a careful personal examination of the actual condition of the person and on such examination we find that __________________:

   1. (Is) (Is not) in need of mental health treatment; and
   2. (Does) (Does not) lack capacity to participate in decisions about (her) (his) mental health treatment.

   The facts and circumstances on which we base our opinions are stated in the following report of
   symptoms and history of case, which is hereby made a part hereof.
   According to the advance directive for mental health treatment, (name of patient)
   _____________________, wishes to receive mental health treatment in accordance with the preferences and instructions stated in the advance directive for mental health treatment.
   We are duly licensed to practice in this state of New Mexico, are not related to
   _____________________ by blood or marriage and have no interest in her/his estate.
   Witness our hands this _______ day of ____________, 20___
   _________________________________ M.D., D.O., Ph.D.,
   Other
   _________________________________ M.D., D.O., Ph.D.,
   Other
   Subscribed and sworn to before me this ________ day of _____________________, 20____

   ______________________________
   Notary Public
   REPORT OF SYMPTOMS AND HISTORY OF CASE BY EXAMINERS
   I.
   GENERAL
   Complete name
   __________________________________
   Place of residence
   ________________________________
   Sex ________ Ethnicity
   ___________________________
   Age
   ________
   Date of Birth
   ____________________________________
   II. STATEMENT OF FACTS AND CIRCUMSTANCES
   Our determination that the principal (is) (is not) in need for mental health treatment is based on the following:
   _____________________________________________________________________________
   _____________________________________________________________________________

   Our determination that the principal does not have the capacity to participate in the principal's mental health treatment decisions is based on:

   1. the principal's ability to understand and communicate the nature of the proposed health care or mental health treatment described as:

      _____________________________________________________________________________
      _____________________________________________________________________________

   2. the principal's ability to understand and communicate the consequences of the proposed health care or mental health treatment described as:

      _____________________________________________________________________________
      _____________________________________________________________________________

   3. the principal's ability to understand and communicate the significant benefits, risks and alternatives to the proposed health care or mental health treatment described as:

      _____________________________________________________________________________
      _____________________________________________________________________________

   4. the principal's ability to understand and communicate a choice about the proposed health care or mental health treatment described as:

   _____________________________________________________________________________
   _____________________________________________________________________________
   III. NAME AND RELATIONSHIPS OF FAMILY MEMBERS/OTHERS TO BE NOTIFIED
   Other data
   __________________________________________________
   Dated at ________________, New Mexico, this _______ day of _______________, 20____
   ___________________________________________ M.D., D.O., Ph. D.,
   ___________________________________________ Other Address
   ___________________________________________ M.D., D.O., Ph. D.,
   ___________________________________________ Other Address.

1. An individual, while having capacity, 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 shall be signed for the individual and be witnessed by two witnesses pursuant to Subsections I and J of Section 4 [24-7B-4 NMSA 1978] of the Mental Health Care Treatment Decisions Act, each of whom has signed at the direction of the individual and in the presence of the individual and each other.
2. An individual, while having capacity, may revoke all or part of an advance directive for mental health treatment, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke.
3. A mental health treatment provider, agent or guardian who is informed of a revocation shall promptly communicate the fact of the revocation to the supervising health care provider and to any mental health treatment facility at which the patient is receiving care.
4. 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 mental health treatment. 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.
5. An advance directive for mental health treatment that conflicts with an earlier advance directive for mental health treatment revokes the earlier directive to the extent of the conflict.
6. Unless otherwise specified in the power of attorney for mental health treatment, an advance healthcare directive pursuant to the Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978] and an advance directive for mental health treatment shall be treated separately. A revocation of a power of attorney for mental health treatment shall not affect the validity of a power of attorney.

1. The form provided in Subsection E of this section may be used to create an individual instruction regarding mental health treatment. An individual may complete or modify all or any part of the form. The Mental Health Care Treatment Decisions Act [24-7B-1 NMSA 1978] governs the effect of this or any other writing used to create an advance directive for mental health treatment.
2. A principal may designate a capable person eighteen years of age or older to act as an agent to make mental health treatment decisions. An alternative agent may also be designated to act as an agent if the original agent is unable or unwilling to act at any time. An appointment of an agent may be accomplished by using the form provided by Subsection E of this section.
3. An agent who has accepted the appointment in writing shall have authority to make decisions, in consultation with the primary health care professional, about mental health treatment on behalf of the principal only when the principal is certified to lack capacity and to require mental health treatment as provided by the Mental Health Care Treatment Decisions Act. These decisions shall be consistent with any wishes or instructions the principal has expressed in the instruction. If the wishes or instructions of the principal are not expressed, the agent shall act in what the agent believes to be the best interest of the principal. The agent may consent to evaluation for admission to inpatient mental health treatment on behalf of the principal if so authorized in the advance directive for mental health treatment.
4. An agent may renounce the agent's authority by giving notice to the principal. If a principal lacks capacity, the agent may renounce the agent's authority by giving notice to the named alternative agent, if any, or, if none, to the attending qualified health care professional or health care provider. The primary health care professional or health care provider shall note the withdrawal of the last named agent as part of the principal's medical record.
5. An advance directive for mental health treatment may be executed by using the following optional form, completed or modified to the extent desired by the individual, and the form may be notarized:

“ADVANCE DIRECTIVE FOR MENTAL HEALTH TREATMENT”

I, ______________________, being a person with capacity, willfully and voluntarily make known my wishes about mental health treatment, by my instructions to others through my advance directive for mental health treatment, or by my appointment of an agent, or both. If a guardian or an agent is appointed to make mental health decisions for me, I intend this document to take precedence over other means of ascertaining my wishes and interests.
The fact that I may have left blanks in this directive does not affect its validity in any way. I intend that all completed sections be followed. I intend this directive to take precedence over any other mental health directives I have previously executed, to the extent that they are inconsistent with this document, or unless I expressly state otherwise in either document.
I understand that I may revoke this directive in whole or in part if I am a person with capacity. I understand that I cannot revoke this directive if one qualified health care professional and one mental health treatment provider find that I am an incapacitated person, unless I successfully challenge the determination of incapacity.
I understand there are some circumstances where my provider may not have to follow my directive, specifically, if the treatment requested in this directive is infeasible or unavailable, the facility or provider is not licensed or authorized to provide the treatment requested or the directive conflicts with other applicable law. I thus do hereby declare:

I. DECLARATION FOR MENTAL HEALTH TREATMENT

If a mental health treatment provider and a qualified health care professional, one of whom is my primary health care professional, if reasonably available, determine that my ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that I lack the capacity to refuse or consent to mental health treatment and that mental health treatment is necessary, I direct my primary health care professional and a mental health treatment provider, pursuant to the Mental Health Care Treatment Decisions Act, to provide the mental health treatment I have indicated below by my signature. I understand that "mental health treatment" means services provided for the prevention of, amelioration of symptoms of
or recovery from mental illness or emotional disturbance, including but not limited to electroconvulsive treatment, treatment with medication, counseling, rehabilitation services or evaluation for admission to a facility for care or treatment of persons with mental illness, if required.
Preferences and Instructions About Treatment, Facilities and Physicians
I would like the physician(s) named below to be involved in my treatment decisions:
Dr. ____________________ Contact information __________________
Dr. ____________________ Contact information __________________
I do not wish to be treated by Dr. ____________________________
Other Preferences: ____________________________________________

Preferences and Instructions About Other Providers

I am receiving other treatment or care from providers who I feel have an impact on my mental health care. I would like the following treatment provider(s) to be contacted when this directive is effective:
Name: __________________ Profession: _____________________
Contact Information______________________
Name: __________________ Profession: _____________________
Contact Information ______________________

Preferences and Instructions About Medications for Mental Health Treatment

(initial and complete all that apply)
____ I consent, and authorize my agent to consent, to the following medications:
_____________________________________________________________________________
____ I do not consent, and I do not authorize my agent to consent, to the administration of the following medications:
_____________________________________________________________________________
____ I am willing to take the medications excluded above if my only reason for excluding them is the side effects, which include _________________________________, and these side effects can be eliminated by dosage adjustment or other means.
____ I am willing to try any other medications the hospital doctor recommends.
____ I am willing to try any other medications my outpatient doctor recommends.
____ I do not want to try any other medications.
Medication Allergies
I have allergies to, or severe side effects from, the following:
_____________________________________________________________________________
I have the following other preferences or instructions about medications:
_____________________________________________________________________________
Preferences and Instructions About Hospitalization and Alternatives
(initial all that apply and, if desired, rank "1" for first choice, "2" for second choice, and so on)
____ In the event my psychiatric condition is serious enough to require 24-hour care and I have no physical conditions that require immediate access to emergency medical care, I prefer to receive this care in programs/facilities designed as alternatives to psychiatric hospitalization.
____ I would also like the interventions below to be tried before hospitalization is considered:
____ Calling someone or having someone call me when needed
Name: _________________ Telephone: _____________________
____ Having a mental health service provider come to see me
____ Going to a crisis triage center or emergency room
____ Staying overnight at a crisis respite (temporary) bed
____ Seeing a provider for help with psychiatric medications
____ Other, specify:
___________________________________________
Authority to Consent to Inpatient Treatment
I consent, and authorize my agent to consent, to evaluation for admission to inpatient mental health treatment.
(Sign one)
____ If deemed appropriate by my agent and treating physician
________________________________
Signature
or
____ Under the following circumstances
(specify symptoms, behaviors or circumstances that indicate the need for hospitalization)
_____________________________________________________________________________
________________________________
Signature
____ I do not consent, or authorize my agent to consent, to evaluation for admission to inpatient
treatment
________________________________
Signature
Preferences and Instructions About Use of Seclusion or Restraint
I would like the interventions below to be tried before use of seclusion or restraint is considered (initial all that apply)
____ "Talk me down": one-on-one
____ More medication
____ Time out/ privacy
____ Show of authority/ force
____ Shift my attention to something else
____ Set firm limits on my behavior
____ Help me to discuss/vent feelings
____ Decrease stimulation
____ Offer to have neutral person settle dispute
____ Other, specify
__________________________________
If it is determined that I am engaging in behavior that requires seclusion, physical restraint and/or emergency use of medication, I prefer these interventions in the order I have chosen (choose "1" for first choice, "2" for second choice, and so on):
____ Seclusion
____ Seclusion and physical restraint (combined)
____ Medication by injection
____ Medication in pill or liquid form
In the event my physician decides to use medication in response to an emergency situation after due consideration of my preferences and instructions for emergency treatments stated above, I expect the choice of medication to reflect any preferences and instructions I have expressed in this directive. The preferences and instructions I have expressed in this section regarding medication in emergency situations do not constitute consent to use of the medication for
nonemergency treatment. Preferences and Instructions About Electroconvulsive Therapy
My wishes regarding electroconvulsive therapy are (sign one):
____ I do not consent, nor authorize my agent to consent, to the administration of electroconvulsive therapy.
________________________________
Signature
____ I consent, and authorize my agent to consent, to the administration of electroconvulsive
therapy.
________________________________
Signature
____ I consent, and authorize my agent to consent, to the administration of electroconvulsive therapy, but only under the following conditions:
_____________________________________________________________________________

________________________________
Signature

Preferences and Instructions About Who Is Permitted to Visit

If I have been admitted to a mental health treatment facility, the following people are not permitted to visit me there:
Name:
________________________________________________________
Name:
________________________________________________________
Name:
________________________________________________________
I understand that persons not listed above may be permitted to visit me.

Additional Instructions About My Mental Health Care

Other instructions about my mental health care: ______________
In case of emergency, please contact: ________________________
Name: _________________________ Address: _____________________
Work Telephone: _______________ Home telephone: ______________
Physician: ____________________ Address: _____________________
Telephone: ____________________
The following may help me to avoid a hospitalization:
_____________________________________________________________________________
I generally react to being hospitalized as follows:
_____________________________________________________________________________
Staff of the hospital or crisis unit can help me by doing the following:
_____________________________________________________________________________

Refusal of Treatment

I do not consent to any mental health treatment.
________________________________
Signature
I further state that this document and the information contained in it may be released to any requesting licensed mental health professional.

_____________________________
Signature of principal
_____________________________
Date
_____________________________
Signature of witness
_____________________________
Date
II. APPOINTMENT OF AGENT
If my primary health care professional and a mental health provider determine that my ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that I lack the capacity to refuse or consent to mental health treatment and that mental health treatment is necessary, I direct my primary health care professional and other health care providers, pursuant to the Mental Health Care Treatment Decisions Act, to follow the instructions of my agent.
I hereby appoint:
Name
________________________________________
Address
_____________________________________
Telephone _________________________________ to act as my agent to make decisions regarding my mental health treatment if I become incapable of giving or withholding informed consent for that treatment.
If the person named above refuses or is unable to act on my behalf, or if I revoke that person's authority to act as my agent, I authorize the following person to act as my agent:
Name
________________________________________
Address
_____________________________________
Telephone
_________________________________
My agent is authorized to make decisions that are consistent with the wishes I have expressed in my declaration. If my wishes are not expressed, my agent is to act in what he or she believes to be my best interest.

_____________________________
Signature of principal
_____________________________
Date
III. CONFLICTING PROVISION
I understand that if I have completed both a declaration and have appointed an agent and if there is a conflict between my agent's decision and my declaration, my declaration shall take precedence unless I indicate otherwise.
________________________________
Signature
I understand that if I have completed both an advance health care directive and an advance directive for mental health treatment, that those directives should be executed as separate instructions.

________________________________
Signature
IV. OTHER PROVISIONS

1. In the absence of my ability to give directions regarding my mental health treatment, it is my intention that this advance directive for mental health treatment shall be honored as the expression of my legal right to consent or to refuse to consent to mental health treatment.
2. I direct the following concerning the care of my minor children:

   _______________________________________________________________

3. This advance directive for mental health treatment shall be in effect until it is

   revoked.

4. I understand that I may revoke this advance directive for mental health treatment at any time.
5. I understand and agree that if I have any prior advance directives for mental health treatment, and if I sign this advance directive for mental health treatment, my prior advance directives for mental health treatment are revoked.
6. I understand the full importance of this advance directive for mental health treatment and I am emotionally and mentally competent to make this advance directive for mental health treatment.

Signed this _______ day of ___________, 20__
__________________________________________
Signature
__________________________________________
City, county and state of residence
This advance directive was signed in my presence.
__________________________________________

Signature of witness
__________________________________________
Address
__________________________________________.

1. A guardian shall comply with the ward's individual instructions and may not revoke the ward's advance directive for mental health treatment unless the appointing court expressly so authorizes after notice to the agent and the ward.
2. A mental health treatment decision of an agent appointed by an individual having capacity takes precedence over that of a guardian, unless the appointing court expressly directs otherwise after notice to the agent and the ward.
3. Subject to the provisions of Subsections A and B of this section, a mental health treatment decision made by a guardian for the ward is effective without judicial approval, if the appointing court has expressly authorized the guardian to make mental health treatment decisions for the ward, in accordance with the provisions of Sections 43-1-15 or 45-5-312 NMSA 1978, after notice to the ward and any agent.

1. Before implementing a mental health treatment decision made for a patient, a supervising health care provider shall promptly communicate to the patient the decision made and the identity of the person making the decision.
2. A supervising health care provider who knows of the existence of an advance directive for mental health treatment, a revocation of an advance directive for mental health treatment or a challenge to a determination or certification of lack of capacity shall promptly record its existence in the patient's health care record and, if it is in writing, shall request a copy and, if one is furnished, shall arrange for its maintenance in the health care record.
3. A qualified health care professional shall disclose an advance directive for mental health treatment to other qualified health care professionals only when it is determined that disclosure is necessary to give effect to or provide treatment in accordance with an individual instruction.
4. A supervising health care provider who makes or is informed of a written determination or certification pursuant to Section 5 [24-7B-5 NMSA 1978] of the Mental Health Care Treatment Decisions Act that a patient lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent or guardian shall promptly record the determination in the patient's health care record and communicate the determination or certification to the patient and to any person then authorized to make mental health treatment decisions for the patient.
5. Except as provided in Subsections F and G of this section, a health care provider or mental health treatment facility providing care to a patient shall comply:
   
   1. before and after the patient is determined to lack capacity, with an individual instruction of the patient made while the patient had capacity;
   2. with a reasonable interpretation of the individual instruction made by a person then authorized to make mental health treatment decisions for the patient; and
   3. with a mental health treatment decision for the patient that is not contrary to an individual instruction of the patient and is made by a person then authorized to make mental health treatment decisions for the patient, to the same extent as if the decision had been made by the patient while having capacity.
6. A mental health treatment provider may only decline to comply with an individual instruction or mental health treatment decision for any of the following reasons:
   
   1. the treatment requested is infeasible or unavailable;
   2. the facility or provider is not licensed or authorized to provide the treatment requested; or
   3. the treatment requested conflicts with other applicable law.
7. A mental health treatment provider or mental health treatment facility may decline to comply with an individual instruction or mental health treatment decision that requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the mental health treatment provider or mental health treatment facility. "Medically ineffective health care" means treatment that would not offer the patient any significant benefit, as determined by a physician chosen by the principal or agent.
8. A health care provider or mental health treatment facility that declines to comply with an individual instruction or mental health care decision shall:
   
   1. promptly so inform the patient, if possible, and any person then authorized to make mental health care decisions for the patient;
   2. provide continuing care to the patient until a transfer can be effected; and
   3. unless the patient or person then authorized to make mental health treatment decisions for the patient refuses assistance, immediately make all reasonable efforts to assist in the transfer of the patient to another health care provider or mental health treatment facility that is willing to comply with the individual instruction or decision.
9. A health care provider or mental health treatment facility shall not require or prohibit the execution or revocation of an advance directive for mental health treatment as a condition for providing health care.
10. The Mental Health Care Treatment Decisions Act [24-7B-1 NMSA 1978] does not require or permit a mental health treatment facility or health care provider to provide any type of mental health treatment for which the mental health treatment facility or health care provider is not licensed, certified or otherwise authorized or permitted by law to provide.

Unless otherwise specified in an advance directive for mental health treatment, a person then authorized to make mental health treatment decisions for a patient has the same rights as the patient to request, receive, examine, copy and consent to the disclosure of medical or any other health care information.

1. A health care provider or mental health treatment facility acting reasonably and on reasonable grounds and in accordance with generally accepted health care standards applicable to the health care provider or mental health treatment facility is not subject to civil or criminal liability or to discipline for unprofessional conduct for:
   
   1. complying or attempting to comply with a mental health treatment decision of a person apparently having authority to make a mental health treatment decision for a patient;
   2. declining to comply with a mental health treatment decision of a person based on a belief that the person then lacked authority;
   3. complying or attempting to comply with an advance directive for mental health treatment and assuming that the directive was valid when made and has not been revoked or terminated;
   4. declining to comply with a mental health treatment directive as permitted; or
   5. complying or attempting to comply with any other provision of the Mental Health Care Treatment Decisions Act [24-7B-1 NMSA 1978].
2. An individual acting as agent or guardian under the Mental Health Care Treatment Decisions Act is not subject to civil or criminal liability or to discipline for unprofessional conduct for mental health treatment decisions made in good faith.

1. No insurer or other provider of benefits regulated by the New Mexico Insurance Code [59A-1-1 NMSA 1978] or a state agency shall require a person to execute or revoke an advance directive for mental health treatment as a condition for membership in, being insured for or receiving coverage or benefits under an insurance contract or plan.
2. No insurer may condition the sale, procurement or issuance of a policy, plan, contract, certificate or other evidence of coverage, or entry into a pension, profit-sharing, retirement, employment or similar benefit plan, upon the execution or revocation of an advance directive for mental health treatment; nor shall the existence of an advance directive for mental health treatment modify the terms of an existing policy, plan, contract, certificate or other evidence of coverage of insurance.
3. The provisions of this section shall be enforced by the superintendent of insurance under the New Mexico Insurance Code [59A-1-1 NMSA 1978].

1. A health care provider or mental health treatment facility that intentionally violates the Mental Health Care Treatment Decisions Act [24-7B-1 NMSA 1978] is subject to liability to the aggrieved individual for damages of five thousand dollars ($5,000) or actual damages resulting from the violation, whichever is greater, plus reasonable attorney fees.
2. A person who intentionally falsifies, forges, conceals, defaces or obliterates an individual's advance directive for mental health treatment or a revocation of an advance directive for mental health treatment without the individual's consent or a person who coerces or fraudulently induces an individual to give, revoke or not give or revoke an advance directive for mental health treatment is subject to liability to that individual for damages of five thousand dollars ($5,000) or actual damages resulting from the action, whichever is greater, plus reasonable attorney fees.
3. The damages provided in this section are in addition to other types of relief available under other law, including civil and criminal law and law providing for disciplinary procedures.

A copy of a written advance directive for mental health treatment or revocation of an advance directive for mental health treatment has the same effect as the original.

1. The Mental Health Care Treatment Decisions Act [24-7B-1 NMSA 1978] does not create a presumption concerning the intention of an individual who has not made or who has revoked an advance directive for mental health treatment.
2. Death resulting from the withholding or withdrawal of health care in accordance with the Mental Health Care Treatment Decisions Act does not for any purpose:
   
   1. constitute a suicide, a homicide or other crime; or
   2. legally impair or invalidate a governing instrument, notwithstanding any term of the governing instrument to the contrary. "Governing instrument" means a deed, will, trust, insurance or annuity policy, account with POD (payment on death designation), security registered in beneficiary form (TOD), pension, profit-sharing, retirement, employment or similar benefit plan, instrument creating or exercising a power of appointment or a dispositive, appointive or nominative instrument of any similar type.
3. The Mental Health Care Treatment Decisions Act does not authorize mercy killing, assisted suicide, euthanasia or the provision, withholding or withdrawal of health care, to the extent prohibited by other statutes of this state.
4. The Mental Health Care Treatment Decisions Act does not authorize or require a health care provider or mental health treatment facility to provide health care contrary to generally accepted health care standards applicable to the health care provider or mental health treatment facility.
5. The Mental Health Care Treatment Decisions Act does not authorize an agent to consent to the admission of an individual to a mental health treatment facility. If the individual's written advance directive for mental health treatment expressly permits treatment in a mental health treatment facility, the agent may present the individual to a facility for evaluation for admission.
6. The Mental Health Care Treatment Decisions Act does not affect other statutes of this state governing treatment for mental illness of an individual admitted to a mental health treatment facility, including involuntary commitment to a mental health treatment facility for mental illness.

1. An advance directive for mental health treatment is valid for purposes of the Mental Health Care Treatment Decisions Act [24-7B-1 NMSA 1978] if it complies with the provisions of that act, regardless of when or where executed or communicated.
2. The Mental Health Care Treatment Decisions Act does not impair a guardianship, living will, durable power of attorney, right-to-die statement or declaration or other advance directive for health care decisions that is in effect before July 1, 2006.
3. Any mental health treatment or psychiatric advance directive, durable power of attorney for health care decisions, living will, right-to-die statement or declaration or similar document that is executed in another state or jurisdiction in compliance with the laws of that state or jurisdiction shall be deemed valid and enforceable in this state to the same extent as if it were properly made in this state.

Sections 27-7-1 through 27-7-13 "Repealed".

• The legislature recognizes that many adults in the state are unable to manage their own affairs or protect themselves from abuse, neglect or exploitation. The legislature further recognizes that the state should protect adults by providing for the detection, correction and elimination of abuse, neglect or exploitation through a program of short-term services for adults in need of protective services or protective placement.
• It is the purpose of the Adult Protective Services Act [27-7-14 NMSA 1978] to establish a system of protective services and protective placement and to ensure the availability of those services or placement to all adults in need of them. It is also the purpose of the Adult Protective Services Act to authorize only the least possible restriction on the exercise of personal and civil rights and religious beliefs consistent with the adult's need for protective services or protective placement and to require that due process be followed in imposing those restrictions.
• Nothing in the Adult Protective Services Act shall be construed to mean an adult, including an incapacitated adult or a protected adult, is abused, neglected, or exploited if the adult relies upon or is being furnished with spiritual treatment through prayer alone in accordance with the express or implied intent of the adult; nor shall anything in that act be construed to authorize or require any medical care or treatment in contravention of the express or implied wish of that adult.

As used in the Adult Protective Services Act [27-7-14 NMSA 1978]:

• "ability to consent" means an adult's ability to understand and appreciate the nature and consequences of proposed protective services or protective placement, including benefits, risks and alternatives to the proposed services or placement and to make or communicate an informed decision;
• "abuse" means:
  
  • knowingly, intentionally or negligently and without justifiable cause inflicting physical pain, injury or mental anguish;
  • the intentional deprivation by a caretaker or other person of services necessary to maintain the mental and physical health of an adult; or
  • sexual abuse, including criminal sexual contact, incest and criminal sexual penetration;
• "adult" means a person eighteen years of age or older;
• "caretaker" means a facility, provider or individual that has assumed the responsibility for the care of an adult;
• "conservator" means a person who is appointed by a court to manage the property or financial affairs, or both, of an incapacitated adult;
• "court" means the district court having jurisdiction;
• "department" means the aging and long-term services department;
• "emergency" means that an adult is living in conditions that present a substantial risk of death or immediate and serious physical harm to the adult or others;
• "exploitation" means an unjust or improper use of an adult's money or property for another person's profit or advantage, pecuniary or otherwise;
• "facility" means a hospital, nursing home, residential care facility, group home, foster care home, assisted living facility or other facility licensed by the state, but does not include a jail, prison or detention facility;
• "guardian" means a person who has qualified to provide for the care, custody or control of an incapacitated adult pursuant to testamentary or court appointment, but excludes one who is a guardian ad litem;
• "incapacitated adult" means any adult with a mental, physical or developmental condition that substantially impairs the adult's ability to provide adequately for the adult's own care or protection;
• "multidisciplinary team" means a team composed of diverse professionals who meet periodically to consult on or enhance appropriate community responses to abuse, neglect or exploitation of adults;
• "neglect" means the failure of the caretaker of an adult to provide for the basic needs of the adult, such as clothing, food, shelter, supervision and care for the physical and mental health of that adult; "neglect" includes self-neglect;
• "protected adult" means an adult for whom a guardian or conservator has been appointed or other protective order has been made or an abused, neglected or exploited adult who has consented to protective services or protective placement;
• "protective placement" means the placement of an adult with a provider or in a facility or the transfer of an adult from one provider or facility to another;
• "protective services" means the services furnished by the department or its delegate, as described in Section 27-7-21 NMSA 1978;
• "provider" means a private-residence or health care worker or an unlicensed residential or nonresidential entity that provides personal, custodial or health care;
• "self-neglect" means an act or omission by an incapacitated adult that results in the deprivation of essential se
• "substantiated" means a determination, based on a preponderance of collected and assessed credible information, that abuse, neglect or exploitation of an incapacitated or protected adult has occurred; and
• "surrogate" means a person legally authorized to act on an adult's behalf.

• Subject to the availability of funds, the department shall develop a coordinated system of protective services or protective placement for incapacitated or protected adults who have been abused, neglected or exploited. In planning this system, the department shall obtain the advice of agencies, corporations, boards and associations involved in the provision of social, health, legal, nutritional and other services to adults, as well as of organizations of adults.
• The department shall ensure that the adult protective services system for incapacitated or protected adults who have been abused, neglected or exploited includes:
  
  • a process for the collection and analysis of data relating to adult protective services or protective placement and for the provision of an annual findings and recommendations report to the governor and the appropriate interim committee;
  • the establishment and use of multidisciplinary teams to develop treatment strategies, ensure maximum coordination with existing community resources and provide comprehensive assessment and case consultation on difficult or complex cases, provided that the adults' privacy and confidentiality rights in such cases are protected;
  • coordination among the various state or local agencies that serve incapacitated or protected adults; and
  • an emphasis on the need for prevention of abuse, neglect or exploitation of adults.
• Upon establishment of the adult protective services system, the department shall be responsible for continuing coordination and supervision of the system. In carrying out these duties, the department shall:
  
  • adopt rules necessary to implement and operate the system;
  • monitor and evaluate the effectiveness of the system; and
  • use to the extent available grants from federal, state and other public and private sources to support the system.
• The department shall administer a public information program regarding the problem of abuse, neglect and exploitation of adults; reporting and prevention of adult abuse, neglect or exploitation; and the availability of treatment and protective services or protective placement for those adults.

• The department shall:
  
  • develop, maintain and update as needed a process to receive a report or referral of suspected abuse, neglect or exploitation of an adult;
  • assess an adult and the adult's situation to determine what immediate protective services or protective placement may be required;
  • conduct an investigation to determine if the report or referral of abuse, neglect or exploitation is substantiated;
  • document evidence, observations and other information obtained in the course of an investigation;
  • develop a plan to provide an adult with or refer an adult for protective services, protective placement or other intervention services, unless the department determines that the adult is knowingly and voluntarily refusing services; and
  • ensure that the protective services or protective placement provided by or through the department is short term and has a termination date; provided that appropriate arrangements have been made for follow-up care if needed, including any long-term services for which the adult may qualify.
• Upon request, the department, in accordance with federal or state laws that protect an adult's right to privacy and confidentiality, shall have immediate access to and may reproduce any record, including medical, personal, psychological and financial records, of the adult that the department determines is necessary to pursue an investigation mandated by this section or by the Resident Abuse and Neglect Act [30-47-1 NMSA 1978] if:
  
  • the adult has the ability to consent and has given written consent;
  • the adult is unable to consent in writing, and gives oral consent in the presence of a third party as a witness;
  • the adult has a guardian, conservator or surrogate with the authority to approve review of the records and the department obtains the permission of the guardian, conservator or surrogate for review of the record;
  • the adult is unable to give consent and:
    
    • has no guardian, conservator or surrogate;
    • the department is unaware of and has no reasonable grounds for believing that there is a guardian, conservator or surrogate; or
    • the department is unable to contact the guardian, conservator or surrogate within three working days of the initiation of the investigation; or
  • the department obtains from the district court an order granting access upon a showing that:
    • consent is being withheld due to coercion, extortion or justifiable fear of future abuse, neglect, exploitation or abandonment of the adult; or
    • there is reasonable cause to believe that the adult has been or is being abused, neglected or exploited and that after notice by the department of the alleged abuse, neglect or exploitation, the guardian, conservator or surrogate has refused to give consent.
  • Upon request by the department, the provider or a facility in which an adult is or has been residing shall provide to the department the name, address and telephone number of the guardian, conservator, surrogate, attorney-in-fact, legal representative or next of kin of the adult.
  • The department shall have immediate access to an adult, whether in a facility or provider setting, who is alleged to be abused, neglected or exploited to determine the accuracy of the report and the necessity of protective services or protective placement, to evaluate the adult's needs and develop a service plan to meet those needs and to provide for the services or placement by or through the department. If the department is denied access to the adult alleged to be abused, neglected or exploited, the department may gain access upon petition to the court for an order requiring appropriate access if the department can demonstrate that a facility, provider or individual has interfered with the department's attempts to access the adult under investigation.
  • Anyone willfully interfering with an investigation of adult abuse, neglect or exploitation, pursuant to this section, is guilty of a misdemeanor. Interference under this section shall not include efforts by a facility, provider or individual to establish whether there is reasonable cause to believe that there is adult abuse, neglect or exploitation, provided that the department is notified as soon as reasonable cause is established, whether or not the internal investigation has been concluded.
  • The department may assess a civil penalty not to exceed ten thousand dollars ($10,000) per violation against a facility, provider or individual who violates the provisions of Subsection B, C or D of this section. The department may assess and collect the penalty, after notice and an opportunity for hearing before a hearing officer designated by the department to hear the matter, upon a determination that a facility, provider or individual willfully interfered with the department or discriminated, disciplined or retaliated against a person who communicated or disclosed information to the department in good faith pursuant to this section. The hearing officer has the power to administer oaths on request of any party and issue subpoenas and subpoenas duces tecum. Additionally, if the violation is against a person covered by the Personnel Act [10-9-1 NMSA 1978], the department shall refer the matter to the agency employing the person for disciplinary action. Any party may appeal a final decision by the department to the court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

• Protective services are short-term services furnished by the department or under arrangement through the department to an incapacitated or protected adult who has been abused, neglected or exploited and with the adult's consent or appropriate legal authority.
• The protective services furnished in a protective services system may include social, psychiatric, health, legal and other services provided on a short-term basis that, if appropriate, transition to other ongoing or long-term services outside the protective services system and that detect, correct or eliminate abuse, neglect or exploitation consistent with the Adult Protective Services Act [27-7-14 NMSA 1978]. The adult protective services system established by the department may include outreach, public information and education, prevention programs, referral for health or legal services and other activities consistent with the Adult Protective Services Act.
• The costs of providing protective services shall be borne by the department or other appropriate agency, unless the adult agrees to pay for them or a court authorizes the provider or the department or other agency to receive reasonable reimbursement from the adult's assets after a finding that the adult is financially able to make payment. As appropriate and as permitted by law, the department may bill the adult or a third party to receive reasonable reimbursement for protective services rendered.

• Any adult who has been abused, neglected or exploited and is in need of protective services or protective placement as determined by the department and who consents to those services or placement shall receive them. If the adult withdraws or refuses consent, voluntary protective services or protective placement shall not be provided. No legal rights are relinquished as a result of acceptance of voluntary protective services or protective placement.
• A person who interferes with the provision of protective services or protective placement to an adult who consents to receive those services or placement is guilty of a misdemeanor. In the event that interference occurs, the department may petition the court to enjoin that interference, may impose a civil penalty or, at the department's discretion, may request criminal prosecution.
• The department may assess a civil penalty not to exceed ten thousand dollars ($10,000) per violation against a person that violates the provisions of Subsection B of this section. The department may assess and collect the penalty after notice and an opportunity for hearing, before a hearing officer designated by the department to hear the matter, upon a determination that a person willfully interfered with the department pursuant to this subsection. The hearing officer has the power to administer oaths on request of any party and issue subpoenas and subpoenas duces tecum. Additionally, if the violation is against a person covered by the Personnel Act [10-9-1 NMSA 1978], the department shall refer the matter to the agency employing the person for disciplinary action. Any party may appeal a final decision by the department to the court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

• If an adult lacks the ability to consent to receive protective services or protective placement, those services or placement may be ordered by a court on an involuntary basis through an emergency order pursuant to the Adult Protective Services Act [27-7-14 NMSA 1978] or through appointment of a guardian or conservator.
• In ordering involuntary protective services or protective placement, the court shall authorize only that intervention that it finds to be least restrictive of the adult's liberty and rights consistent with the adult's welfare and safety. The basis for such a finding shall be stated in the record by the court.
• The incapacitated or protected adult shall not be required to pay for involuntary protective services or protective placement unless that payment is authorized by the court upon a showing that the adult is financially able to pay. In this event, the court shall provide for reimbursement of the reasonable costs of the services or placement.
• A person who interferes with the provision of involuntary protective services or protective placement to an adult is guilty of a misdemeanor. In the event that interference occurs, the department may petition the court to enjoin interference, may impose a civil penalty or, at the department's discretion, may request criminal prosecution.
• The Adult Protective Services Act does not affect other state statutes governing treatment of an adult admitted to a mental health care institution for mental illness or involuntary commitment of an adult to a mental health care institution for mental illness or any other involuntary mental health treatment.
• The department may petition the court for the appointment of a guardian or conservator if the department determines that a no less restrictive course of care or treatment is available that is consistent with the incapacitated adult's welfare and safety.
• The department and its employees are prohibited from:
  
  • taking custody of an adult;
  • acting as guardian, conservator or surrogate for any adult in need of protective services or protective placement, except that an employee may serve in that role when related by affinity or consanguinity to an adult;
  • acting as treatment guardian under the Mental Health and Developmental Disabilities Code [43-1-2 NMSA 1978], except that an employee may serve in that role when related by affinity or consanguinity to an adult;
  • acting as qualified health care professionals pursuant to the Uniform Probate Code [45-1-101 NMSA 1978]; and
  • acting as visitors under the Uniform Probate Code for any adult in need of protective services or protective placement.
• The department may assess a civil penalty not to exceed ten thousand dollars ($10,000) per violation against a person that violates the provisions of Subsection D of this section. The department may assess and collect the penalty after notice and an opportunity for hearing, before a hearing officer designated by the department to hear the matter, upon a determination that a person willfully interfered with the department pursuant to this section. The hearing officer has the power to administer oaths on request of any party and issue subpoenas and subpoenas duces tecum. Additionally, if the violation is against a person covered by the Personnel Act [10-9-1 NMSA 1978], the department shall refer the matter to the agency employing the person for disciplinary action. Any party may appeal a final decision by the department to the court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

• Upon petition by the department, the court may issue an order authorizing the provision of involuntary protective services or protective placement on an emergency basis to an adult under the criteria set forth in Subsection B of this section.
• At the time a petition is filed or any time thereafter, the court may issue an ex-parte order authorizing the provision of involuntary protective services or involuntary protective placement upon a sworn written statement of facts showing probable cause exists to believe that:
  
  • the adult is incapacitated;
  • an emergency exists;
  • the adult lacks the ability to consent to receive protective services or protective placement; and
  • no person authorized by law or court order to give consent for the adult is available or willing to consent to the provision of protective services or protective placement on an emergency basis.
• The petition for an emergency ex-parte order shall set forth:
  
  • the name, address and interest of the petitioner;
  • the name, age and address of the adult in need of protective services;
  • the facts describing the nature of the emergency;
  • the facts describing the nature of the adult's incapacity;
  • the proposed protective services or protective placement;
  • the petitioner's reasonable belief, together with supporting facts, about the need for emergency intervention; and
  • the facts showing the petitioner's attempts to obtain the adult's consent to the proposed protective services or protective placement and the outcome of those attempts.
• An affidavit for an ex-parte order for emergency protective services or emergency protective placement may be signed by any person who has knowledge of the facts alleged or is informed of them and believes that they are true.
• The Rules of Evidence do not apply to the issuance of an emergency ex-parte protective services or protective placement order.
• In issuing an emergency ex-parte order, the court shall adhere to the following limitations:
  
  • only the protective services or protective placement necessary to remove the conditions creating the emergency shall be ordered, and the order shall specifically designate the proposed protective services or protective placement;
  • protective services or protective placement authorized by an emergency ex-parte order shall not include hospitalization or a change of residence, unless the order gives specific approval for the action;
  • protective services or protective placement may be provided by emergency ex-parte order only for ten days; provided that the original order may be renewed once for a period of twenty additional days upon application to the court showing that continuation of the original order is necessary to remove the conditions creating the emergency. An application for renewal of the original order shall be supported by a written report of the results of the evaluation required by Subsection C of Section 27-7-27 NMSA 1978 and copies of the actual evaluations;
  • the issuance of an emergency ex-parte order shall not deprive the adult of any rights except those provided for in the order;
  • to implement an emergency ex-parte order, the court may authorize forcible entry of premises for the purposes of rendering protective services or protective placement or transporting the adult to another location for the provision of services or placement only if facts contained in the affidavit supporting the petition for ex-parte order show that attempts to gain voluntary access to the premises have failed and forcible entry is necessary; provided that persons making an authorized forcible entry shall be accompanied by a law enforcement officer; and
  • service of an ex-parte order authorizing forcible entry shall be according to the following procedure. The order shall be served on the alleged incapacitated adult by a person authorized to serve arrest warrants and shall direct the officer to advise the adult of the nature of the protective services or protective placement that have been ordered by the court. If the order authorizes emergency protective placement, the order shall direct the officer to assist in transfer of the adult to a place designated by the court.
• Notice of the filing of the petition and the issuance of the emergency ex-parte order, including a copy of the petition, the ex-parte order and the affidavit for ex-parte order, shall be given to the adult and the adult's spouse or, if none, the adult children or next of kin, surrogate or guardian, if any. The notice shall be given, in language reasonably understandable by its intended recipients, within twenty-four hours, excluding Saturdays, Sundays and legal holidays, from the time that the ex-parte order authorizing protective services or protective placement is issued by the court or, if the ex-parte order authorizes forcible entry, from the time the ex-parte order is served upon the incapacitated adult. The notice shall inform the recipients that a hearing will be held no later than ten days after the date the petition is filed to determine whether the conditions creating the emergency have been removed and whether the adult should be released from the court's order for protective services or protective placement.
• Within ten days from the filing of a petition for an emergency order for protective services or protective placement, the court shall hold a hearing upon any application for renewal of the emergency order. The hearing upon an application for renewal shall be held pursuant to the provisions of Section 27-7-27 NMSA 1978.
• The protected adult or any interested person may petition the court to have the emergency order set aside or modified at any time, notwithstanding any prior findings by the court that the adult is incapacitated.
• If the adult continues to need protective services or protective placement after the renewal order provided in Paragraph (3) of Subsection F of this section has expired, the department or original petitioner shall immediately petition the court to appoint a conservator or guardian or to order nonemergency protective services or protective placement pursuant to Section 27-7-26 NMSA 1978.
• The petitioner shall not be liable for filing the petition if the petitioner acted in good faith.

• When, from personal observation of a law enforcement officer, it appears probable that an incapacitated adult will suffer immediate and irreparable physical injury or death if not immediately placed in a facility, that the adult is unable to give consent and that it is not possible due to the emergency nature of the circumstances to follow the procedures of Section 27-7-25 NMSA 1978, the law enforcement officer making that observation may transport the adult to a facility. No court order is required to authorize the law enforcement officer to act upon the officer's observation pursuant to this section.
• A law enforcement officer who transports an incapacitated adult to a facility pursuant to the provisions of this section shall immediately notify the department of the placement.
• The department shall file a petition pursuant to Subsection A of Section 27-7-25 NMSA 1978 within two working days after the placement of the adult by the law enforcement officer has occurred unless the department determines that the criteria for emergency removal and placement have not been met or that there is no further need for involuntary protective services or protective placement.
• Upon receipt of notice from a law enforcement officer that an adult has been placed in a facility pursuant to the authority of this section, the department shall give notice pursuant to Subsection G of Section 27-7-25 NMSA 1978 within two working days after the placement of the adult has taken place.
• The court shall hold a hearing on the petition filed by the department as a result of the law enforcement officer's emergency placement within ten days of the filing of the petition, pursuant to the provisions of Section 27-7-27 NMSA 1978, to determine whether the conditions creating the need for the emergency placement have been removed and whether the adult should be released from the protective placement.

• Involuntary nonemergency protective services or protective placement shall not take place unless ordered by a court after a finding on the record based on clear and convincing evidence that:
  
  • the adult is incapacitated and lacks the ability to consent;
  • the adult is incapable of providing for the adult's own care or custody and the adult is at significant risk of abuse, neglect or exploitation that creates a substantial risk of serious physical harm to the adult or others;
  • the adult needs care or treatment;
  • the proposed order is substantially supported by the evaluation provided for in Subsection E of this section or, if not so supported, there are compelling reasons for ordering those protective services or that protective placement; and
  • no less restrictive alternative course of care or treatment is available that is consistent with the incapacitated adult's welfare and safety.
• The petition for nonemergency protective services or protective placement shall state with particularity the factual basis for the allegations specified in Subsection A of this section and shall be based on the most reliable information available to the petitioner.
• Written notice of a petition for nonemergency protective services or protective placement shall be served upon the adult by personal service at least fourteen days prior to the time set for a hearing. Notice shall also be given to the adult's legal counsel, caretaker, guardian, conservator, surrogate, spouse and adult children or next of kin, whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained. The person serving the notice shall certify to the court that the petition has been delivered and how the required notice was given. The notice shall be in language reasonably understandable by the adult who is the subject of the petition and also shall be given orally if necessary. The notice shall include:
  
  • the names of all petitioners;
  • the factual basis of the belief that protective services or protective placement is needed;
  • the rights of the adult in the court proceedings; and
  • the name and address of the proposed protective services or protective placement.
• Upon the filing of a petition for nonemergency protective services or protective placement, the court shall hold a hearing pursuant to the provisions of Section 27-7-27 NMSA 1978.
• In order to make the findings required in Paragraphs (2) through (5) of Subsection A of this section, the court shall direct that a comprehensive evaluation of the adult alleged to be in need of protective services or protective placement be conducted as provided in Subsection C of Section 27-7-27 NMSA 1978.
• In ordering nonemergency protective placement, the court shall give consideration to the choice of residence of the adult. The court may order protective placement in a facility or with a provider.
• The court may authorize nonemergency protective services or protective placement for an adult for a period not to exceed six months.
• At the time of expiration of an order for nonemergency protective services or protective placement, the original petitioner may petition the court to extend its order for protective services or protective placement for an additional period not to exceed six months. The contents of the petition shall conform to the provisions of Subsections A and B of this section. Notice of the petition for the extension of protective services or protective placement shall be made in conformity with Subsection C of this section. The court shall hold a hearing to determine whether to renew the order. Any person entitled to a notice under Subsection C of this section may appear at the hearing and challenge the petition. The court shall conduct the hearing pursuant to the provisions of Section 27-7-27 NMSA 1978.
• The services provided to or the residence of an adult that had been established pursuant to an order for nonemergency protective services or protective placement shall not be changed unless the court authorizes the change of services or transfer of residence. The adult or the adult's legal representative may petition the court to order such a change of services or transfer of residence.
• Prior to the expiration of the nonemergency protective services or protective placement, the department shall review the need for continued services or placement, including the necessity for appointment of a conservator or guardian, and shall make such recommendation to the court.

• The hearing on a petition for renewal of an emergency ex-parte order for protective services or protective placement or for an order for nonemergency protective services or protective placement shall be held under the following conditions:
  
  • the adult shall be present unless the court determines it is impossible for the adult to be present or it is not in the adult's best interest because of a threat to that adult's health and safety;
  • the adult has the right to counsel whether or not the adult is present at the hearing. If the adult is indigent, the court shall appoint counsel no later than the time of the filing of the petition;
  • counsel appointed by the court pursuant to Paragraph (2) of this subsection shall interview the allegedly incapacitated adult prior to any hearing on the petition or any application for renewal of the original emergency order;
  • the adult shall have the right to trial by jury upon request by the adult or the adult's counsel only in hearings held on petitions for nonemergency protective services or protective placement; and
  • the adult has the right at the adult's own expense or, if indigent, at the expense of the state to secure an independent medical, psychological or psychiatric examination relevant to the issue involved in any hearing under this section and to present a report of this independent evaluation or the evaluator's personal testimony as evidence at the hearing.
• The duty of counsel representing an adult for whom a petition for an order for emergency protective services or for nonemergency protective services or protective placement has been filed shall be to represent the adult by protecting the adult's legal rights and presenting the adult's declared position to the court.
• The department shall establish an evaluation or assessment process for the conduct of a comprehensive physical, mental and social evaluation of an adult for whom a petition has been filed in a court for an order for nonemergency protective services or protective placement or for whom an application for renewal of an original emergency order has been made. The court shall consider the department's evaluation or assessment in determining whether to issue an order or renewal of an order for nonemergency protective services or protective placement.
• The court shall issue for the record a statement of its findings in support of any order for renewal of emergency protective services or for nonemergency protective services or protective placement.

For all legal proceedings called for in the Adult Protective Services Act [27-7-14 NMSA 1978], attorneys for the department or the district attorney's office shall file all proceedings on behalf of the petitioner.

• All records of the department, the department's designee, including a multidisciplinary team, the court and state and local agencies that are created or maintained pursuant to investigations under the Adult Protective Services Act [27-7-14 NMSA 1978] or for whom application has ever been made for protection shall be confidential and shall not be disclosed directly or indirectly to the public.
• The records described in Subsection A of this section shall be open to inspection only by persons with a legitimate interest in the records as follows:
  
  • the alleged abused, neglected or exploited adult, or the adult's surrogate, except as to the identity of the referral source and second source information, such as medical or psychological evaluations;
  • court personnel;
  • law enforcement officials;
  • department personnel;
  • any state government social services agency in any other state;
  • health care or mental health professionals involved in the evaluation, treatment, residential care or protection of the adult;
  • parties and their counsel in all legal proceedings pursuant to the Adult Protective Services Act or legal actions pursuant to the Uniform Probate Code [45-1-101 NMSA 1978];
  • persons who have been, or will be in the immediate future, providing care or services to the adult, except the alleged perpetrator of the abuse, neglect or exploitation;
  • persons appointed by the court pursuant to the Uniform Probate Code to be the adult's guardian ad litem, guardian, conservator, visitor or qualified health care professional;
  • any of the persons whom the department petitions the court appoint pursuant to the Uniform Probate Code;
  • any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court; and
  • protection and advocacy representatives pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act, Protection and Advocacy for Individuals with Mental Illness Act or the protection and advocacy of individual rights provisions of the Rehabilitation Act.
• Records of cases involving substantiated abuse, neglect or exploitation shall be provided as appropriate to the department of health, the district attorney's office, the medicaid fraud control unit in New Mexico, the office of the attorney general and the office of the long-term care ombudsman for appropriate additional action.
• Any person who intentionally, unlawfully releases any information or records closed to the public pursuant to this section or releases or makes other unlawful use of records in violation of this section is guilty of a misdemeanor.
• The department may assess a civil penalty not to exceed ten thousand dollars ($10,000) per violation against any person that intentionally, unlawfully releases any information or records closed to the public pursuant to this section or releases or makes other unlawful use of records. The department may assess and collect the penalty, after notice and an opportunity for hearing before a hearing officer designated by the department to hear the matter, upon a determination that a person violated the provisions of this subsection. The hearing officer has the power to administer oaths on request of any party and issue subpoenas and subpoenas duces tecum. Additionally, if the violation is against a person covered by the Personnel Act [10-9-1 NMSA 1978], the department shall refer the matter to the agency employing the person for disciplinary action. Any party may appeal a final decision by the department to the court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

• Any person, including financial institutions, having reasonable cause to believe that an incapacitated adult is being abused, neglected or exploited shall immediately report that information to the department.
• The report required in Subsection A of this section may be made orally or in writing. The report shall include the name, age and address of the adult, the name and address of any other person responsible for the adult's care, the nature and extent of the adult's condition, the basis of the reporter's knowledge and other relevant information.
• Any person failing or refusing to report, or obstructing or impeding any investigation, as required by Subsection A of this section is guilty of a misdemeanor.
• The department may assess a civil penalty not to exceed ten thousand dollars ($10,000) per violation against a person that violates the provisions of Subsection A of this section or obstructs or impedes any investigation as required pursuant to Subsection A of this section. The department may assess and collect the penalty, after notice and an opportunity for hearing before a hearing officer designated by the department to hear the matter, upon a determination that a person violated the provisions of Subsection A of this section or obstructed or impeded any investigation as required pursuant to this section. The hearing officer has the power to administer oaths on request of any party and issue subpoenas and subpoenas duces tecum. Additionally, if the violation is against a person covered by the Personnel Act [10-9-1 NMSA 1978], the department shall refer the matter to the agency employing the person for disciplinary action. Any party may appeal a final decision by the department to the court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

Any person making a report pursuant to Section 27-7-30 NMSA 1978, testifying in any judicial proceeding arising from the report or participating in a required evaluation pursuant to the Adult Protective Services Act [27-7-14 NMSA 1978] or any law enforcement officer carrying out his responsibilities under that act or any person providing records or information as required under that act shall be immune from civil or criminal liability on account of that report, testimony or participation, unless the person acted in bad faith or with a malicious purpose.

This act [28-16B-1 to 28-16B-6 NMSA 1978] may be cited as the "Office of Guardianship Act".

• The "office of guardianship" is created in the developmental disabilities planning council.
• The director of the developmental disabilities planning council shall employ a head of the office who shall be hired on the basis of ability, experience and knowledge of guardianship issues under the Uniform Probate Code [45-1-101 NMSA 1978]. The position shall be classified pursuant to the Personnel Act [10-9-1 NMSA 1978].
• Subject to appropriations, the director may hire such other professional and clerical staff as necessary to carry out the purposes of the office.

1. The office of guardianship may:

1. promulgate rules in accordance with the State Rules Act [14-4-1 NMSA 1978] to carry out the provisions of the Office of Guardianship Act [Chapter 28, Article 16B NMSA 1978]; and
2. enter into agreements with other state or federal agencies to provide guardianship services and to provide or receive payment for such services.

1. The office of guardianship shall:

1. contract for the provision of probate guardianship services to income-eligible incapacitated persons, including temporary guardianship as provided in Section 45-5-310 NMSA 1978;
2. provide for the recruitment and training of persons interested and willing to serve as mental health treatment guardians;
3. provide training and information to interested persons on the duties and responsibilities of guardians, including alternatives to guardianship and mental health treatment guardianship;
4. establish procedures for the investigation and resolution of complaints against contractors;
5. contract for attorneys to petition the district court for guardianship of persons believed to be incapacitated or to seek amendment or termination of existing guardianship orders if the needs or situation of wards have changed; provided that the selection of persons to be served under such contracts shall be made by the office based on selection criteria established by rule; and
6. serve as an interested person as defined in Subsection I of Section 45-5-101 NMSA 1978.

• The office of guardianship shall monitor and enforce all guardianship contracts. In carrying out this duty, the office may:
• have access to case records, copies of court filings and reports, financial records and other records maintained by contractors related to contract services provided unless specifically sequestered by the court;
• petition the court of jurisdiction for access to records that have been sequestered;
• arrange visits with wards who are served by contract guardians; and
• pursue legal and other remedies against contractors for noncompliance with contract provisions

• B. The office shall protect and maintain the confidentiality of all client-specific information and records obtained to the same extent as required for the contractor and to any extent otherwise required by state or federal law.

1. a requirement that contractors and their staff meet nationally recognized standards for guardianship services;
2. a requirement for adoption and compliance with a code of ethics for guardians;
3. the maximum caseload for guardians;
4. the fee schedule for services provided;
5. assurance that the civil rights of wards served by the contractor shall be met, including the right to be served in the most integrated setting appropriate to the needs of the ward;
6. provisions for access by the office of guardianship to records, wards and contractor staff as needed to monitor and enforce contract compliance and for quality assurance purposes; and
7. minimum financial accounting and reporting requirements.

1. The office of guardianship shall establish by rule for the filing, investigation and resolution of complaints about guardianship services provided by contractors.
2. The office shall acknowledge receipt of the complaint, notify all parties involved and initiate an investigation within fifteen working days of the filing of the complaint.
3. A determination shall be made and a decision rendered on the complaint within sixty working days unless mutually agreed upon by all parties or unless a shorter time is required to protect the ward.
4. The office may refer complaints to other agencies for investigation or prosecution, as appropriate.
5. Complaints against the office or a staff member of the office shall be investigated by the human services department.

Chapter 45 NMSA 1978 may be cited as the "Uniform Probate Code".

1. The Probate Code [this chapter] shall be liberally construed and applied to promote its underlying purposes and policies.

1. The underlying purposes and policies of the Probate Code are:

• to simplify and clarify certain laws concerning the affairs of decedents, missing persons, protected persons, minors and incapacitated persons;
• to discover and make effective the intent of a decedent in distribution of his property;
• to promote a speedy and efficient system for the settlement of the estate of the decedent; and
• to facilitate use and enforcement of certain trusts.

The principles of law and equity supplement the Probate Code's [this chapter] provisions, unless specifically displaced by particular provisions of the code.

Unless otherwise apparent from the context, in Chapter 45,Article 5 NMSA 1978:

• "conservator" is as defined in Section 45-1-201 NMSA 1978;
• "court", for purposes of Sections 45-5-101 through 45-5-502 NMSA 1978, means the district court or the children's or family division of the district court where such jurisdiction is conferred by the Children's Code [Chapter 32A NMSA 1978];
• "functional impairment" means an impairment that is measured by a person's inability to manage his personal care or the person's inability to manage his estate or financial affairs or both;
• "guardian" is as defined in Section 45-1-201 NMSA 1978;
• "guardian ad litem" is as defined in Section 45-1-201 NMSA 1978;
• "incapacitated person" means any person who demonstrates over time either partial or complete functional impairment by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he is unable to manage his personal affairs or he is unable to manage his estate or financial affairs or both;
• "inability to manage his personal care" means the inability, as evidenced by recent behavior, to meet one's needs for medical care, nutrition, clothing, shelter, hygiene or safety so that physical injury, illness or disease has occurred or is likely to occur in the near future;
• "inability to manage his estate or financial affairs or both" means gross mismanagement, as evidenced by recent behavior, of one's income and resources or medical inability to manage one's income and resources that has led or is likely in the near future to lead to financial vulnerability;
• "interested person" means any person who has an interest in the welfare of the person to be protected under this article;
• "least restrictive form of intervention" means that the guardianship or conservatorship imposed on the incapacitated person or minor ward represents only those limitations necessary to provide the needed care and rehabilitative services, and that the incapacitated person or minor ward shall enjoy the greatest amount of personal freedom and civil liberties;
• "letters" is as defined in Section 45-1-201 NMSA 1978;
• "limited conservator" means any person who is qualified to manage the estate and financial affairs of an incapacitated person pursuant to a court appointment in a limited conservatorship;
• "limited conservatorship" means that an incapacitated person is subject to a conservator's exercise of some, but not all, of the powers enumerated in Sections 45-5-424 and 45-5-425 NMSA 1978;
• "limited guardian" means any person who is qualified to manage the care, custody and control of an incapacitated person pursuant to a court appointment of a limited guardianship;
• "limited guardianship" means that an incapacitated person is subject to a guardian's exercise of some but not all of the powers enumerated in Section 45-5-312 NMSA 1978;
• "minor" is as defined in Section 45-1-201 NMSA 1978;
• "minor ward" means a minor for whom a guardian or conservator has been appointed solely because of minority;
• "protective proceeding" means a conservatorship proceeding under Section 45-5-401 NMSA 1978;
• "protected person" means a minor or other person for whom a conservator has been appointed or other protective order has been made;
• "qualified health care professional" means a physician, psychologist, nurse practitioner or other health care practitioner whose training and expertise aid in the assessment of functional impairment;
• "ward" means a person for whom a guardian has been appointed; and
• "visitor" means a person who is an appointee of the court who has no personal interest in the proceeding and who has been trained or has the expertise to appropriately evaluate the needs of the person who is allegedly incapacitated. A "visitor" may include, but is not limited to, a psychologist, social worker, developmental incapacity professional, physical and occupational therapist, an educator and a rehabilitation worker.

• The court has exclusive jurisdiction over protective proceedings and guardianship proceedings.
• When both guardianship and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.

• The parent of an unmarried incapacitated person may appoint by will, or other writing signed by the parent and attested by at least two witnesses, a guardian of the incapacitated person. If both parents are dead or incapacitated or the surviving parent has no parental rights or has been adjudged incapacitated, appointment becomes effective when, after having given seven days' prior written notice of intention to do so to the incapacitated person and to the person having care of the incapacitated person or to the nearest adult relative, the guardian files acceptance of appointment in the court in which the will is probated, or in the case of a non-testamentary instrument, in the court at the place where the incapacitated person resides or is present. The notice shall state that the appointment may be terminated by filing a written objection in the court, as provided in Subsection D of this section. If both parents are dead, an effective appointment by the parent who died later has priority.
• The spouse of a married incapacitated person may appoint by will, or other writing signed by the spouse and attested by at least two witnesses, a guardian of the incapacitated person. The appointment becomes effective when, after having given seven days' prior written notice of intention to do so to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is probated or, in the case of a non-testamentary nominating instrument, in the court at the place where the incapacitated person resides or is present. The notice shall state that the appointment may be terminated by filing a written objection in the court, as provided in Subsection D of this section. An effective appointment by a spouse has priority over an appointment by a parent.
• An appointment effected by filing the guardian's acceptance under a will probated in the state of testator's domicile is effective in New Mexico.
• On the filing in the court in which the will was probated or, in the case of a non-testamentary nominating instrument, in the court at the place where the incapacitated person resides or is present, of written objection to the appointment by the incapacitated person for whom a parental or spousal appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the parental or spousal nominee or any other suitable person upon an adjudication of incapacity in proceedings under Sections 45-5-301.1 through 45-5-315 NMSA 1978.

Guardianship for an incapacitated person shall be used only as is necessary to promote and to protect the well being of the person, shall be designed to encourage the development of maximum self reliance and independence of the person and shall be ordered only to the extent necessitated by the person's actual functional mental and physical limitations. An incapacitated person for whom a guardian has been appointed retains all legal and civil rights except those which have been expressly limited by court order or have been specifically granted to the guardian by the court.

If no local guardian has been appointed or no petition therefore is pending in New Mexico, a foreign guardian may file with the district court in the county in which the incapacitated person resides authenticated copies of his appointment and of any official bond he has given and a statement of his address and telephone number. Thereafter, he may exercise in New Mexico all powers and shall have the duties of a local guardian and may maintain actions and proceedings in New Mexico subject to any conditions imposed upon nonresident parties generally.

Venue for guardianship proceedings for an alleged incapacitated person is in the judicial district where the alleged incapacitated person resides or is present. If the alleged incapacitated person is admitted to an institution pursuant to order of a court of competent jurisdiction, venue is also in the judicial district in which that court sits.

• Any interested person may file a petition for the appointment of a person to serve as guardian for an alleged incapacitated person under the Uniform Probate Code [45-1-101 NMSA 1978]. The petition shall state the following:
  
  • the name, age and address of the alleged incapacitated person for whom the guardian is sought to be appointed;
  • the nature of the alleged incapacity as it relates to the functional limitations and physical and mental condition of the alleged incapacitated person and the reasons why guardianship is being requested;
  • if a limited guardianship is sought, the particular limitations requested;
  • whether a guardian has been appointed or is acting in any state for the alleged incapacitated person;
  • the name and address of the proposed guardian;
  • the names and addresses, as far as known or as can reasonably be ascertained, of the persons most closely related by blood or marriage to the alleged incapacitated person;
  • the name and address of the person or institution having the care and custody of the alleged incapacitated person;
  • the names and addresses of any other incapacitated persons for whom the proposed guardian is acting if the proposed guardian is an individual;
  • the reasons the appointment of a guardian is sought and the interest of the petitioner in the appointment;
  • the steps taken to find less restrictive alternatives to the proposed guardianship; and
  • the qualifications of the proposed guardian.
• Notice of a petition under this section for the appointment of a guardian and the hearing on the petition shall be given as provided in Section 45-5-309 NMSA 1978.
• After the filing of a petition, the court shall set a date for hearing on the issues raised by the petition. Unless an alleged incapacitated person already has an attorney of his own choice, the court shall appoint an attorney to represent him. The court-appointed attorney in the proceeding shall have the duties of a guardian ad litem, as set forth in Section 45-5-303.1 NMSA 1978.
• The person alleged to be incapacitated shall be examined by a qualified health care professional appointed by the court who shall submit a report in writing to the court. The report shall:
  
  • describe the nature and degree of the alleged incapacitated person's incapacity, if any, and the level of the respondent's intellectual, developmental and social functioning; and
  • contain observations, with supporting data, regarding the alleged incapacitated person's ability to make health care decisions and manage the activities of daily living.
• The court shall also appoint a visitor who shall interview the person seeking appointment as guardian and the person alleged to be incapacitated. The visitor shall also visit the present place of abode of the person alleged to be incapacitated and the place where it is proposed he will be detained or reside if the requested appointment is made. The visitor shall evaluate the needs of the person alleged to be incapacitated and shall submit a written report to the court. The report shall include a recommendation regarding the appropriateness of the appointment of the proposed guardian. The report to the court shall also include recommendations regarding:
  
  • those aspects of his personal care that the alleged incapacitated person can manage without supervision or assistance;
  • those aspects of his personal care that the alleged incapacitated person could manage with the supervision or assistance of support services and benefits; and
  • those aspects of his personal care that the alleged incapacitated person is unable to manage without the supervision of a guardian.

  Unless otherwise ordered by the court, the appointment of the visitor terminates and the visitor is discharged from his duties upon entry of the order appointing the guardian and acceptance of the appointment by the guardian.
  F.A person alleged to be incapacitated shall be present at the hearing on the issues raised by the petition and any response to the petition unless the court determines by evidence that it is not in the alleged incapacitated person's best interest to be present because of a threat to the health or safety of the alleged incapacitated person or others as determined by the court.

• The court upon request or its own motion may conduct hearings at the location of the alleged incapacitated person who is unable to be present in court.
• The rules of evidence shall apply and no hearsay evidence that is not otherwise admissible in a court shall be admitted into evidence except as otherwise provided in this article. There is a legal presumption of capacity, and the burden of proof shall be on the petitioner to prove the allegations set forth in the petition. Such proof shall be established by clear and convincing evidence.
• A record of the proceedings shall be made if requested by the alleged incapacitated person or his attorney or when ordered by the court. Records, reports and evidence submitted to the court or recorded by the court shall be confidential, except that the public shall be granted access to the following information:
  
  • docket entries;
  • date of the proceeding, appointment and termination;
  • duration of the guardianship; and
  • the name and other information necessary to identify the alleged incapacitated person.
• Notwithstanding the provisions of Subsection I of this section, any disclosure of information shall not include any diagnostic information, treatment information or other medical or psychological information.
• The issue of whether a guardian shall be appointed for the alleged incapacitated person shall be determined by the court at a closed hearing unless the alleged incapacitated person requests otherwise.
• Upon request of the petitioner or alleged incapacitated person, the court shall schedule a jury trial.

• The court, at the hearing on the petition for appointment for a guardian under this chapter, shall:
  
  • inquire into the nature and extent of the functional limitations of the alleged incapacitated person; and
  • ascertain his capacity to care for himself.
• If it is determined that the alleged incapacitated person possesses the capacity to care for himself, the court shall dismiss the petition.
• Alternatively, the court may appoint a full guardian as requested in the petition or a limited guardian and confer specific powers of guardianship after finding in the record based on clear and convincing evidence that:
  
  • the person for whom a guardian is sought is totally incapacitated or is incapacitated only in specific areas as alleged in the petition;
  • the guardianship is necessary as a means of providing continuing care, supervision and rehabilitation of the incapacitated person;
  • there are no available alternative resources that are suitable with respect to the alleged incapacitated person's welfare, safety and rehabilitation;
  • the guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the alleged incapacitated person; and
  • the proposed guardian is both qualified and suitable and is willing to serve.
• The court may enter any other appropriate order consistent with the findings of this section.
• A copy of the order appointing the guardian shall be furnished to the incapacitated person and his counsel.
• The order shall contain the name and address of the guardian as well as notice of the incapacitated person's right to appeal the guardianship appointment and of his right to seek alteration or termination of the guardianship at any time.

By accepting a testamentary or court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian or mailed to him at his address as listed in the court records and to his address as then known to the petitioner.

The authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or ward, the determination of incapacity of the guardian, or upon removal or resignation as provided in Section 5-307 [45-5-307 NMSA 1978]. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect his liability for prior acts nor his obligation to account for funds and assets of his ward.

• On the petition of the incapacitated person or any person interested in his welfare and upon notice and hearing, the court may remove a guardian and appoint a successor if it is in the best interest of the incapacitated person.
• Upon death, removal or resignation of a guardian, the court may appoint another guardian or make any other order that may be appropriate. If a successor guardian is appointed, he succeeds to the title and powers of his predecessor.
• The incapacitated person or any person interested in his welfare may petition for an order that he is no longer incapacitated and for removal or resignation of the guardian. A request for this order may be made by informal letter to the court or judge. Any person who knowingly interferes with transmission of this kind of request to the court may be adjudged guilty of contempt of court.
• Unless waived by the court upon the filing of a petition to terminate a guardianship for reasons other than the death of the incapacitated person, the court shall follow the same procedures to safeguard the rights of the incapacitated person as those that apply to a petition for appointment of a guardian, as set forth in Section 45-3-303 NMSA 1978.

Letters of guardianship shall contain:

• the names, addresses and telephone numbers of the guardian;
• the name, address and telephone number of the incapacitated person; and
• the scope of the guardianship including the specific legal limitations imposed by the court on the powers of the guardian.

• In a proceeding for the appointment or removal of a guardian of an incapacitated person, other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of hearing and a copy of the petition and any interim orders that may have been entered shall be given to each of the following:
  
  • the person alleged to be incapacitated; and
  • his spouse, parents and adult children, or if there are no adult children, at least one of his closest adult relatives if any can be found.

  Notice of hearing shall be given to any person who is serving as the guardian or conservator of the person to be protected or who has primary responsibility for his care.

• Notice shall be served personally on the alleged incapacitated person and his spouse if they can be found within New Mexico. Notice to an out-of-state spouse, the parents and to all other persons, except the alleged incapacitated person, shall be given as provided in Section 45-1-401 NMSA 1978.
• At least fourteen days' notice shall be given before the hearing takes place. The notice shall be in plain language and large type and shall include the following information and shall be substantially in the following form:

"NOTICE
TO: (name and address of person receiving notice)

On (date of hearing) at (time of hearing) in (place of hearing) at (city), New Mexico, the (name and address of court) will hold a hearing to determine whether a guardian should be appointed for (name of alleged incapacitated person). The purpose of this proceeding is to protect (name of alleged incapacitated person). A copy of the petition requesting appointment of a guardian is attached to this notice.

At the hearing the court will determine whether (name of alleged incapacitated person) is an incapacitated person under New Mexico law.

If the court finds that (name of alleged incapacitated person) is incapacitated, the court at the hearing shall also consider whether (name of proposed guardian, if any) should be appointed as guardian of (name of alleged incapacitated person). The court may, in its discretion, appoint some other qualified person as guardian. The court may also, in its discretion, limit the powers and duties of the guardian to allow (name of alleged incapacitated person) to retain control over certain activities

(Name of alleged incapacitated person) shall attend the hearing and be represented by an attorney. The petition may be heard and determined in the absence of (name of alleged incapacitated person) if the court determines that the presence of (name of alleged incapacitated person) is not possible. If (name of alleged incapacitated person) attends the hearing and is not represented by an attorney, the court must appoint an attorney to represent the alleged incapacitated person.

The court may, on its own motion or on request of any interested person, postpone the hearing to another date and time.

________________________________
(signature of petitioner)"

• When a petition for guardianship has been filed, but adherence to the procedures set out in this section would cause immediate and irreparable harm to the alleged incapacitated person's physical health, the court may appoint a temporary guardian prior to the final hearing and decision on the petition, subject to the requirements of this section.
• Upon motion of the petitioner, the court shall schedule a hearing on the appointment of a temporary guardian for the earliest possible date, appoint counsel for the alleged incapacitated person and give notice as provided in Section 45-5-309 NMSA 1978. Upon a finding that serious and irreparable harm to the alleged incapacitated person's health would result during the pendency of petition, the court shall appoint a temporary guardian and shall specify the temporary guardian's powers in order to prevent serious and irreparable harm to the alleged incapacitated person. The duration of the temporary guardianship shall not exceed sixty days, except that upon order of the court, the temporary guardianship may be extended for not more than thirty days.
• A temporary guardian may be appointed without notice to the alleged incapacitated person and his attorney only if it clearly appears from specific facts shown by affidavit or sworn testimony that immediate and irreparable harm will result to the alleged incapacitated person before a hearing on the appointment of a temporary guardian can be held. The alleged incapacitated person shall be notified within twenty-four hours of the appointment of a temporary guardian by the petitioner as provided in Subsection C of Section 45-5-309 NMSA 1978. On two days' notice to the party who obtained the appointment of a temporary guardian without notice, or on such shorter notice to that party as the court may prescribe, the alleged incapacitated person or his counsel may appear and move dissolution or modification of the court's order, and, in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
• A temporary guardian is entitled to the care and custody of the alleged incapacitated person, and the authority of any permanent guardian previously appointed by the court is suspended as to those specific matters granted to the temporary guardian by the court. A temporary guardian may be removed by the court at any time. A temporary guardian shall make any report the court requires. In all other respects, the provisions of the Probate Code [this chapter] concerning guardians apply to temporary guardians.
• Appointment of a temporary guardian shall have the effect of limiting the legal rights of the individual as specified in the court order. Appointment of a temporary guardian shall not be evidence of incapacity.

• Any person deemed to be qualified by the court may be appointed guardian of an incapacitated person, except that no individual who operates or is an employee of a boarding home, residential care home, nursing home, group home or other similar facility in which the incapacitated person resides may serve as guardian for the incapacitated person, except an employee may serve in such capacity when related by affinity or consanguinity.
• Persons who are not disqualified have priority for appointment as guardian in the following order:
  
  • a guardian or other like fiduciary appointed by the appropriate court of any other jurisdiction;
  • any person previously nominated to serve as guardian in a writing signed by the incapacitated person prior to his incapacity;
  • the spouse of the incapacitated person;
  • an adult child of the incapacitated person;
  • a parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;
  • any relative of the incapacitated person with whom he has resided for more than six months prior to the filing of the petition;
  • a person nominated by the person who is caring for the incapacitated person or paying benefits to him; and
  • any other person.
• With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the incapacitated person, may pass over a person having priority and appoint a person having a lower priority under this section and shall take into consideration:
  
  • the preference of the incapacitated person;
  • the geographic location of the proposed guardian;
  • the relationship of the proposed guardian to the incapacitated person;
  • the ability of the proposed guardian to carry out the powers and duties of the guardianship; and
  • potential financial conflicts of interest between the incapacitated person and proposed guardian.

• If the court enters judgment pursuant to Subsection C of Section 45-5-304 NMSA 1978, it shall appoint a limited guardian if it determines that the incapacitated person is able to manage some but not all aspects of his personal care. The court shall specify those powers that the limited guardian shall have and may further restrict each power so as to permit the incapacitated person to care for himself commensurate with his ability to do so. A person for whom a limited guardian has been appointed retains all legal and civil rights except those that have been specifically granted to the limited guardian by the court. The limited guardian shall exercise his supervisory powers over the incapacitated person in a manner that is the least restrictive form of intervention consistent with the order of the court.
• A guardian of an incapacitated person has the same powers, rights and duties respecting the incapacitated person that a parent has respecting his unemancipated minor child, except that a guardian is not legally obligated to provide from his own funds for the incapacitated person and is not liable to third persons for acts of the incapacitated person solely by reason of the guardianship. In particular and without qualifying the foregoing, a guardian or his replacement has the following powers and duties, except as modified by order of the court:
  
  • to the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the incapacitated person, a guardian is entitled to custody of the incapacitated person and may establish the incapacitated person's place of abode within or without New Mexico;
  • if entitled to custody of the incapacitated person, a guardian shall make provision for the care, comfort and maintenance of the incapacitated person and, whenever appropriate, arrange for his training and education. He shall take reasonable care of the incapacitated person's clothing, furniture, vehicles and other personal effects and commence conservatorship proceedings if other property of the incapacitated person is in need of protection;
  • if no agent is entitled to make health-care decisions for the incapacitated person under the provisions of the Uniform Health-Care Decisions Act [24-7A-1 NMSA 1978], then the guardian shall make health-care decisions for the incapacitated person in accordance with the provisions of that act. In exercising health-care powers, a guardian may consent or withhold consent that may be necessary to enable the incapacitated person to receive or refuse medical or other professional care, counsel, treatment or service. That decision shall be made in accordance with the values of the incapacitated person, if known, or the best interests of the incapacitated person if the values are not known;
  • if no conservator for the estate of the incapacitated person has been appointed, the guardian may institute proceedings to compel any person under a duty to support the incapacitated person or to pay sums for the welfare of the incapacitated person; and
  • the guardian shall exercise his supervisory powers over the incapacitated person in a manner that is least restrictive of his personal freedom and consistent with the need for supervision.
• Any guardian of an incapacitated person for whom a conservator also has been appointed shall control the care and custody of the incapacitated person and is entitled to receive reasonable sums for his services and for room and board furnished to the incapacitated person. The guardian may request the conservator to expend the incapacitated person's estate by payment to third persons or institutions for the incapacitated person's care and maintenance.

• The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, over resignation, removal, accounting and other proceedings relating to the guardianship.
• If the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interests of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.

• The guardian of an incapacitated person shall file an annual report with the appointing court within thirty days of the anniversary date of the guardian's appointment. A copy of the report shall also be submitted to the district judge who appointed the guardian or his successor, to the incapacitated person and to his conservator, if any. The report shall include information concerning the progress and condition of the incapacitated person, including but not limited to his health, medical and dental care, residence, education, employment and habitation; a report on the manner in which the guardian carried out his powers and fulfilled his duties; and the guardian's opinion regarding the continued need for guardianship. The report shall be substantially in the following form:

  "IN THE DISTRICT COURT
  __________________ COUNTY, STATE OF NEW MEXICO
  In the matter of the ) No. ____________
  Guardianship of )
  ________________________________ )
  (Enter Name of Incapacitated Person) )
  An Incapacitated Person. )

  GUARDIAN'S REPORT

  Pursuant to Section 45-5-314 NMSA 1978, the undersigned duly appointed, qualified and acting guardian of the above-mentioned incapacitated person reports to the court as follows:

  1. My name is: _____________________________________________________________

  2. My address and telephone number are: ___________________________________

  _____________________________________________________________________________

  3. The name, if applicable, and address of the place where the
  incapacitated person now resides are: ________________________________________

  4. A description of the incapacitated person's place of residence and of programs, activities or services in which the incapacitated person is
  involved is as follows: ______________________________________________________

  5. The name of the person primarily responsible for the care of the
  incapacitated person at such person's place of residence is: _________________

  6. The name and address of any hospital or other institution where the
  incapacitated person is now admitted on a temporary basis are: _______________

  7. A brief description of the incapacitated person's physical condition is:

  8. A brief description of the incapacitated person's mental condition is: __

  9. A brief description of contracts made on behalf of the incapacitated
  person during the past year is: ______________________________________________

  10. A brief description of major decisions made on the incapacitated
  person's behalf during the past year is: _____________________________________

  11. The reasons, if any, why the guardianship should continue are: ________

  Signature of Guardian: ______________________________________________________

  Date: ________________________".

• Any guardian may rely on a qualified health care professional's current written report to provide descriptions of the physical and mental conditions required in items 7, 8 and 11 of the annual report as specified in Subsection A of this section.
• The guardian may be fined five dollars ($5.00) per day for an overdue annual report. The fine shall be used to fund the costs of visitors, counsel and functional assessments utilized in conservatorship and guardianship proceedings pursuant to the Probate Code [this chapter].
• The court shall not waive the requirement of an annual report under any circumstance, but may grant an extension of time not to exceed sixty days. The court may require the filing of more than one report annually.

An alleged incapacitated person shall not be permitted by the court to consent to the appointment of a guardian. All the procedural safeguards contained in Chapter 45,Article 5 NMSA 1978 pursuant to the appointment of a guardian for an incapacitated person shall apply in every guardianship proceeding.

This act [46B-1-101 to 46B-1-403 NMSA 1978] may be cited as the "Uniform Power of Attorney Act".

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;
F. "good faith" means honesty in fact;
G. "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:
b) missing;
c) detained, including incarcerated in a penal system; or
d) 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 ofattorney;
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.

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

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.

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.

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 ofattorney 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 1044b, 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.

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.

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.

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) ofSubsection 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 1320d, as amended, and applicable regulations to obtain access to the principal's health care information and communicate with the principal's health care provider.

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 provideor
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.

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, becomeincapacitated, 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 byanother 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 byAnother 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.

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.

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.

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 extentactually 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 bestinterest based on all relevant factors, including:
a. the value and nature of the principal's property;
b. the principal's foreseeable obligations and need formaintenance;
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 astatute 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 shallcomply with the request within an additional thirty days.

A provision in a power of attorney relieving an agent of liability for breach of duty is binding on the principal and the principal's successors in interest except to the extent the provision:
A. relieves the agent of liability for breach of duty committed dishonestly, with an improper motive or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or
B. was inserted as a result of an abuse of a confidential or fudiciary relationship with the principal.

A. The following persons may petition a court to construe a power of attorney or review the agent's conduct and grant appropriate relief:
1) the principal or the agent;
2) a guardian, conservator or other fiduciary acting for the principal;
3) a person authorized to make health care decisions for the principal;
4) the principal's spouse, parent or descendant;
5) an individual who would qualify as a presumptive heir of the principal;
6) a person named as a beneficiary to receive any property, benefit or contractual right on the principal's death or as a beneficiary of a trust created by or for theprincipal that has a financial interest in the principal's estate;
7) a governmental agency having regulatory authority to protect the welfare of the principal;
8) the principal's caregiver or another person that demonstrates sufficient interest inthe principal's welfare; and
9) a person asked to accept the power of attorney.
B. Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent's authority orthe power of attorney.A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under Section 105 [46B-1-105 NMSA 1978] of the Uniform Power of Attorney Act that the signature is genuine.
C. A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid or terminated that the purported agent's authority is void, invalid or terminated or that the agent is exceeding or improperly exercising the agent's authority may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the agent's authority were genuine, valid and still in effect and the agent had not exceeded and had properly exercised the authority.
D. A person that is asked to accept an acknowledged power of attorney may request, and rely upon, without further investigation:

An agent that violates the Uniform Power of Attorney Act [46B-1-101 NMSA 1978] is liable to the principal or the principal's successors in interest for the amount required to:
A. restore the value of the principal's property to what it would have been had the violation not occurred; and
B. reimburse the principal or the principal's successors in interest for the attorney fees and costs paid on the agent's behalf.

Unless the power of attorney provides a different method for an agent's resignation, an agent may resign by giving notice to the principal and, if the principal is incapacitated:
A. to the conservator or guardian, if one has been appointed for the principal, and a co-agent or successor agent; or
B. if there is no person described in Paragraph (1) of this subsection, to:
1) the principal's caregiver;
2) another person reasonably believed by the agent to have sufficient interest in the principal's welfare; or
3) a governmental agency having authority to protect the welfare of the principal.

A. For purposes of this section and Section 120 [46B-1-120 NMSA 1978] of the Uniform Power of Attorney Act, "acknowledged" means purportedly verified before a notary public or other individual authorized to take acknowledgments.
B.A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under Section 105 [46B-1-105 NMSA 1978] of the Uniform Power of Attorney Act that the signature is genuine.
1) an agent's certification under penalty of perjury of any factual matter concerning the principal, agent or power of attorney;
2) an English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English; and
3) an opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.
E. An English translation or an opinion of counsel requested under this section must be provided at the principal's expense unless the request is made more than seven business days after the power of attorney is presented for acceptance.
F. For purposes of this section and Section 120 of the Uniform Power of Attorney Act, a person that conducts activities through employees is without actual knowledge of a fact relating to a power of attorney, a principal or an agent if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact.

A. As used in this section, "statutory form power of attorney" means a power of attorney substantially in the form provided in Section 301 [46B-1-301 NMSA 1978] of the Uniform Power of Attorney Act or that meets the requirements for a military power of attorney pursuant to 10 U.S.C. Section 1046, as amended.
B. Except as otherwise provided in Subsection C of this section:
1.) a person shall either accept an acknowledged statutory form power of attorney or request a certification, a translation or an opinion of counsel under Subsection B of Section 119 [46B-1-119 NMSA 1978] of the Uniform Power of Attorney Act no later than seven business days after presentation of the power of attorney for acceptance;
2.) if a person requests a certification, a translation or an opinion of counsel underSubsection D of Section 119 of the Uniform Power of Attorney Act, the personshall accept the statutory form power of attorney no later than five businessdays after receipt of the certification, the translation or an opinion of counsel;and
3.) a person shall not require an additional or different form of power of attorneyfor authority granted in the statutory form power of attorney presented.
C. A person is not required to accept an acknowledged statutory form power of attorneyif:
1.) the person is not otherwise required to engage in a transaction with theprincipal in the same circumstances;
2.) engaging in a transaction with the agent or the principal in the samecircumstances would be inconsistent with federal law;
3.) the person has actual knowledge of the termination of the agent's authority or ofthe power of attorney before exercise of the power;
4.) a request for a certification, a translation or an opinion of counsel under Subsection D of Section 119 of the Uniform Power of Attorney Act is refused
5.) the person in good faith believes that the power of attorney is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation or an opinion of counsel under Subsection D of Section 119 of the Uniform Power of Attorney Act has been requested or provided; or
6.) the person makes, or has actual knowledge that another person has made, a report to the adult protective services division of the aging and long-term services department stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation or abandonment by the agent or a person acting for or with the agent.
D. A person that refuses in violation of this section to accept an acknowledged statutory form power of attorney is subject to:
1.) a court order mandating acceptance of the power of attorney; and
2.) liability for reasonable attorney fees and costs incurred in any action orproceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.