A person may not have signed a health care power of attorney, but may still have the mental capacity to express his or her wishes. Under New Mexico’s Uniform Health-Care Decisions Act (UHCDA), a person with mental capacity can orally appoint another to be his or her surrogate health care decision-maker. This surrogate would act on the patient’s behalf and tell the doctor or other health care provider what treatment to give or withhold, depending on the wishes of the patient.

The patient who orally appoints a surrogate must personally inform his or her primary doctor about the appointment of a surrogate. If the primary doctor is unavailable, the patient must tell the health care provider who has primary responsibility for that individual’s health care about the surrogate appointment.

What if a person lacks capacity to understand a health care power of attorney or is unable to name a surrogate decision-maker? Won’t a guardian be necessary to make health care decisions for the incapacitated person? The answer is no, because UHCDA states that if there is no health care agent or surrogate, certain individuals are allowed by law to act as a surrogate health care decision-maker for an incapacitated person. From first to last priority, the following people may, by law, act as surrogate decision-makers:

• the spouse, unless legally separated or unless there is a pending petition for annulment, divorce, dissolution of marriage or legal separation;
• 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 well-being;
• an adult child;
• a parent;
• an adult brother or sister;
• a grandparent; or
• an adult who has exhibited special care and concern for the patient, and who is familiar with the patient’s personal values.

The UHCDA requires a surrogate to promptly notify the patient, members of the patient’s family and the doctor that (s)he is now the health care decision-maker for the patient. The law also states that the surrogate should make decisions based on the patient’s instructions or wishes, if known. Otherwise, the surrogate should base a health care decision on the best interest of the patient, taking into consideration the personal values of the patient. The surrogate may not be an owner, operator, or employee of a residential long-term care health care institution where the patient resides, unless the surrogate is related by blood, marriage, or adoption.

What happens if several members of a class want to serve as the surrogate? For example, suppose a person has four children, all of whom are equally eligible to serve as the surrogate for the patient. If the children do not all agree on a health care decision for the patient, the majority decision prevails. Therefore, if three children agree to a certain treatment, the doctor will provide that treatment. If, however, two children favor one treatment and two children favor a different treatment, none of the four children are allowed to be the surrogate. If there is no one available with higher priority, such as a spouse or significant other, then a court proceeding will be necessary to resolve the deadlock. At that point, the court would probably appoint a guardian for the incapacitated patient.