Q : What is a power of attorney?
A : A document signed by a competent adult that gives someone else (the "agent" or "attorney-in-fact") power to act on their behalf.
Q : Do I need a power of attorney?
A : In the event of an emergency, it is helpful to have a power of attorney. When a person becomes too ill to handle their own affairs, their agent can make decisions for your health and financial needs on your behalf. Without a POA, if you become incapacitated your family must petition the court for guardianship or conservatorship.
Q : What types of powers of attorney are there?
A : For full details, see Glossary of Terms.
Q : Can anyone sign a power of attorney?
A : Any adult who understands what they are doing and the contents of the document they are signing can give a power of attorney to another.
Q : Who should I choose as my agent for my power of attorney?
A : You need to carefully consider who you would want to make decisions for your health care and financial needs in the event you are unable to make them yourself. A POA gives the agent a great deal of power, so you must trust your agent to act in your best interests and to make the same decisions you would have made for yourself. You can give a POA to a relative, a friend, or an organization.
Q : How do I know my agent will follow my wishes?
A : Be sure to speak with your agent about your preferences and let them know about your medical needs, as well as your financial situation. Also, be sure they know where you keep your important papers. Stay in constant communication with your agent and ask questions if you don't understand something they are doing. Ask your agent to provide an accounting detailing what they have done with your money. This type of requirement can be included in the power of attorney document.
Q : What if my agent uses my money for their own personal gain?
A : Your agent has a "fiduciary duty" to act in your best interest and to try to do what you would do for yourself if you were able. If they violate that duty, they can be held accountable in a court of law. Be sure to choose someone you trust completely.
Q : What if someone tries to force me to sign a POA against my will?
A : You should not sign any documents that you do not understand or that you do not agree with. Contact your personal attorney, Lawyer Referral for the Elderly, or Adult Protective Services, if someone tries to force you to sign anything you don't want to.
Q : What kind of powers and authority will my agent have?
A : You can specify the powers you want to convey to your agent, or you can give a general POA granting broad, general powers to handle anything that you could handle if you were capable of doing so.
Q : Can my agent use the POA after my death?
A : No, the powers granted to the agent in the POA end upon your death.
Q : Is a power of attorney revocable?
A : Yes, a competent adult can revoke a POA at any time. You can simply tear up the original and all copies, or sign a one-page revocation in the presence of a notary public. If the original POA was recorded with the County Clerk , the revocation must be in writing and must also be recorded. You should give copies of any revocation to banks, stock brokers, doctors, or anyone else who had previously accepted the POA.
Q : I made a POA in another state. Is it good in New Mexico ?
A : It is most likely that your out-of-date POA will be accepted in New Mexico . However, it is wise to update your POA when you move to another state because requirements vary by state law.
Q : Do I need a lawyer to draw up a POA?
A : Not necessarily. Forms that are specifically designed to comply with New Mexico law are available through the State Bar and also can be found on the Internet. Even if it is not prepared by an attorney, you must still sign it in the presence of a notary public. Also, an attorney may think of questions to ask about your specific needs that can ensure you have the POA you need.
Q : Are there situations in which a power of attorney is not sufficient?
A : Because a power of attorney can easily be revoked, it may not be sufficient for a person who is cognitively impaired if they are likely to revoke the POA when they disagree with the agent. Also, if a person becomes incapacitated before they have given someone a power of attorney, they no longer have the legal capacity to sign any legal documents. In both of these situations, it may be necessary to go to court and obtain a guardianship and/or conservatorship.