Do I Really Need a Power of Attorney?

By Lori L. Millet, J.D., LL.M. ABQ Elder Law, PC

YES! In my opinion, powers of attorney are the most important legal documents you can have. A power of attorney is a document that allows someone to act on your behalf as your legal representative. The principal signs the document naming the agent (sometimes referred to as an attorney-in-fact) as his decision maker. Powers of attorney live and die with you. A personal representative (referred to as “executor” in some other states) named in your will does not have any authority to act until after you have passed away. Spouses or significant others cannot automatically act as agent for the other spouse or partner even though we are a community property state. Powers of attorney should be durable, meaning they are good no matter how old the document is or whether or not you have capacity. Financial decisions are governed by the New Mexico Uniform Power of Attorney Act, whereas medical decisions are governed by the New Mexico Uniform Health Care Decisions Act. Thus, you should have two different documents: one for financial and property decisions, and one for medical decisions. Powers of attorney are the best tool to avoid a guardianship and conservatorship, and are much easier and less expensive to obtain. Powers of attorney also provide a way for you to state who you want to make decisions for you instead of state law or a guardianship/conservatorship imposing a decision maker for you that you may not have wanted. For example, if your spouse has a chronic illness that affects mental capacity (such as dementia) you may not want that spouse to make decisions for you. Healthcare powers of attorney allow you to state your wishes pertaining to healthcare decisions, particularly end of life decisions. If you do not have a healthcare power of attorney, there is a decision-making tree in the statute, but the person(s) who would make decisions for you may not be the people you want to make your medical decisions. If you do not have a financial power of attorney, there is rarely an alternative to conservatorship. These documents must be carefully drafted. If the power of attorney is not comprehensive enough, it may not work in some situations, and your family has to get guardianship or conservatorship anyway. A common example is when there is exploitation or neglect, and the principal does not cooperate with the agent in stopgap measures. Alternates should absolutely be named so there is a backup to your first choice of agent. The most important consideration is to name someone trustworthy and who can be decisive. Do not name someone, even a child, if that person has addiction issues or is not going to be able to make decisions in accordance with what you want, not what that person would want for you. The most common example I encounter in this context is a child who has different religious beliefs than the parent, and parent cannot trust child to make the “pull the plug” decision because child does not believe in that option. You can name different people in the roles of medical and financial decisions. You and your spouse can name different people. Your financial agent should be good with managing money, and your health care agent should be strong enough to carry out your wishes no matter how difficult those tasks may be for him to make on your behalf. Do not procrastinate in getting these documents done. A principal has to have legal capacity to sign them, which means he must understand what he is signing. If you or a loved one has a diagnosis of early dementia or other chronic illness, make the appointment with the attorney soon. Dementia in particular can worsen very quickly, sometimes within days, and it becomes too late to sign. Divorce attorneys may disagree, but absent unique circumstances, I recommend making your powers of attorney effective immediately. Your agent must be able to act immediately in the event of a crisis. There is unlikely to be time to have you declared incapacitated. If you cannot trust someone when you can monitor or watch what they are doing, why would you trust them when you are incapacitated and cannot pay attention to your finances? You continue to make your own decisions as long as you are able to do so. I have never heard of a patient being wheeled into the operating room against his will. Finally, do not get forms from the internet or an office supply store. Those documents are frequently not state specific, comprehensive enough, are done under old law, or are just plain wrong. People who use those forms give me job security because I have to clean up the mess bad documents cause.

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