In some cases, the only decisions that need to be made for an incapacitated person are health care decisions. New Mexico law authorizes persons other than guardians to make health care decisions for incapacitated people.

A health care power of attorney is a document in which the person signing or executing the document (principal) authorizes another person (agent or attorney-in-fact) to make health care decisions for the principal. The power of attorney may be very broad and include end-of-life decisions, such as withholding or withdrawing life support, or may be limited to specific health care decisions. To be valid, the health care power of attorney must be in writing and signed by the principal. Although New Mexico law does not require witnesses, having two adult witnesses is recommended. Preferably witnesses should not be family members or the person named as agent. While witnesses are not required, having them should make the document harder to challenge and easier to use in another state. (note)

A person creating a health care power of attorney must have sufficient mental capacity to understand the content of the document (s)he is signing and to whom the power is being given. In New Mexico, a person suffering from dementia who has lucid moments may, during a lucid period, sign a legal document, including a health care power of attorney.

In some instances, health care professionals may determine that a patient lacks the mental capacity to make his or her own health care decisions. Yet the patient may still have the capacity to sign a health care power of attorney. This is because the mental capacity needed to make health care decisions is greater than the mental capacity needed to sign a power of attorney.

New Mexico law states that a person has capacity to make health care decisions if (s)he has the “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.” Patients suffering from a mental impairment may not be able to meet all of these requirements. But they may easily understand that a health care decision needs to be made and know who they trust to make that decision. New Mexico law would allow that mentally impaired patient to either sign a health care power of attorney or orally appoint another person to act as a surrogate health care decision-maker. Surrogates are discussed in the next section.

Unlike guardianships and conservatorships, powers of attorney do not cost a lot or take much time to create. If a person has enough mental capacity to sign a power of attorney, it may be a good alternative to going to court.