How To Make a Power of Attorney in New Mexico FAQ

What Is a Power of Attorney?

A power of attorney (POA) is a legal document that grants one person or organization, known as the agent or attorney in fact, the authority to act on behalf of another person, known as the principal. New Mexico’s Uniform Power of Attorney Act is found in New Mexico statutes §45-5B-101 through §45-5B-403.

There are different types of powers of attorney. A financial power of attorney handles legal or financial decisions. An advance health care directive handles medical decisions and follows wishes for end-of-life care.

Suppose you can’t manage your financial affairs due to an incapacity or disability and do not have a power of attorney. In that case, your family members will have to petition a court for conservatorship. A court then appoints a conservator with the legal authority to manage your personal affairs. Having a power of attorney saves your loved ones’ time and money in court.

Who Can Be My Agent?

You can choose anyone you want to serve as your agent, such as a family member, but they must be an adult and mentally competent. You can even name an attorney, accountant, bank, or financial institution. When selecting your agent, you want someone who is trustworthy, organized, and responsible. An agent has a fiduciary duty to act in good faith and the principal’s best interest. Still, they have broad control over the principal’s money and property.

While you may want to name two agents to act as co-agents, avoid doing so. If your agents must act jointly, they may have disagreements. If your agents can act independently, they may contradict each other’s actions. Instead, name your first agent choice with another agent to serve as their backup or successor agent.

What Can My Agent Do in New Mexico?

You decide what powers you want to give your agent in your financial power of attorney. For example, buying and selling real estate, accessing bank accounts, and managing financial transactions. Under §45-5B-201-§45-5B-217, you can grant your agent general authority to handle the following transactions:

• Real Property (Real Estate)
• Tangible Personal Property (Possessions)
• Stocks and Bonds
• Commodities and Options
• Banks and Other Financial Institutions
• Operation of Entity or Business
• Insurance and Annuities
• Estates, Trusts, and Other Beneficial Interests
• Claims and Litigation
• Personal and Family Maintenance
• Benefits from Governmental Programs or Civil or Military Service
• Retirement Plans
• Taxes
• Gifts

However, under §45-5B-201, you must expressly authorize specific powers to your agent that have the potential to reduce your estate, such as the following:

• Create, amend, revoke, or terminate a revocable trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority granted under the power of attorney
• Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
• Exercise fiduciary powers that the principal has authority to delegate
• Disclaim property, including a power of appointment

You may want your agent to be able to reduce your estate to minimize estate taxes or to qualify you for government benefits such as Medicaid. Think carefully about what powers you want to give and talk to your agent about how you want them to handle your property and assets.

What Is a Durable Power of Attorney in New Mexico?

A durable power of attorney means the power of attorney remains effective even if the principal becomes incapacitated. In New Mexico, unless you state otherwise in your document that it terminates upon your incapacity, the power of attorney is considered durable.

When Is the Power of Attorney Effective?

You specify in your document when you want your power of attorney to start. It can be effective immediately, upon the signing your document, or a “springing” POA that is effective at a future date or upon the occurrence of a future event or contingency, such as your incapacity.

When Does the Power of Attorney End?

Once you make your power of attorney, you can revoke it at any time as long as you are competent. Your power of attorney can also terminate if:

• You die
• You become incapacitated and the power of attorney is non-durable.
• Your agent is unable or unwilling to serve, and you did not name a backup or successor agent
• Your power of attorney has a termination date or event and that date or event occurs

If you name your spouse as your agent and the marriage ends, your spouse’s authority automatically ends unless you state otherwise in your power of attorney.

Does New Mexico Have a Statutory Power of Attorney?

Yes. There is a New Mexico power of attorney form under §45-5B-301. However, it is not mandatory to use that form. There are other options in New Mexico: create your own document customized for your needs or hire an estate planning attorney to draft one for you.

Can I Make My Own Power of Attorney in New Mexico?

Yes. If you are an adult and competent, you make a power of attorney yourself. To make a power of attorney, you should know who you want to serve as your agent and backup agent and what powers you want to give them. People looking for DIY solutions use online estate planning forms. Make sure the power of attorney form you use follows New Mexico law and the execution requirements. But if you have questions about making a power of attorney, you should meet with an attorney for legal advice.

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How Do I Make My Power of Attorney Valid in New Mexico?

Under §45-5B-105, the principal must sign the document (or direct someone to sign it on their behalf and in their conscious presence). The principal must sign in the presence of a notary public, or someone authorized by law to take acknowledgments.

Do I Have to Notarize My Power of Attorney in New Mexico?

Yes, New Mexico requires notarization for a power of attorney to be legally valid under §45–5B–105.

What Should I Do After Signing My Power of Attorney?

Keep your original POA in a secure place. Provide copies of your power of attorney to your agent, backup agents, and any other relevant party. Third parties may ask your agent for an agent certification form in which they attest your POA is effective, and that they can serve as your agent.

Does a Power of Attorney Agent Get Paid in New Mexico?

Your agent may receive reimbursement for reasonable expenses incurred under your power of attorney. They may also be reasonably compensated for their time unless you state otherwise in your document.

Is My New Mexico Power of Attorney Valid in Another State?

Yes. A New Mexico power of attorney created and executed according to New Mexico state law will be honored in other states.

Can I Revoke My New Mexico Power of Attorney?

Yes, if you are competent, you can revoke your power of attorney at any time. To revoke a POA, give a written notice of revocation to your agent and to any other parties that relied on your original POA. Destroy your original power of attorney.

What Estate Planning Documents Should I Have in New Mexico?

A power of attorney is essential if you suddenly can’t handle your affairs, and it avoids the need for a conservatorship. You should consider other estate planning documents, such as a health care directive and a last will and testament.

A healthcare directive combines a power of attorney for healthcare and a living will. You name someone as your healthcare agent to talk to healthcare providers, get medical records, and make healthcare decisions when you cannot. In your directive, you can also detail your wishes for the medical treatments or life-prolonging measures you want to be given or withheld when you have an end-stage illness or terminal condition.

A last will and testament is a document in which you leave instructions on who should handle your estate, who should inherit your property and assets, and who should care for your minor children. Dying without a will, or “intestate,” takes time in probate court because a court must follow state intestacy laws to determine who gets your property and who should care for your children. Making these decisions yourself gives you peace of mind, knowing your wishes will be followed.

Fortunately, it is easy to create a valid power of attorney in New Mexico and create other estate planning documents online templates.