In the event you are seriously injured or incapacitated, you may be unable to make medical decisions about your care. In most states, in the absence of written directions, healthcare professionals will turn to your blood relatives to make these decisions in the event you are unable to make them for yourself. This is true no matter how long you may have been with your partner and regardless of any relationship with your blood relatives.
A durable power of attorney for healthcare empowers another person to make medical decisions about your care in the event you become unable to. Even when you have specified your wishes in a living will/medical directive, there may be some decisions for which the healthcare providers need additional information to decide what action to take. In the absence of a durable power of attorney for healthcare, the healthcare officials will turn to your blood relatives to make these decisions. If you decide to enter into durable power of attorney for healthcare, make sure you make copies for yourself, your partner, your healthcare provider, your hospital and any person named as your proxy.
You can also execute a document describing your wishes concerning end-of-life and life-prolonging medical care. This document is your directive to healthcare professionals about what measures you want them to take when you are no longer capable of communicating your choices.
Finally, hospitals generally permit visitation only by a spouse or blood relatives. However, a hospital visitation authorization allows you to name individuals who are not related by blood or marriage who you would like to be able to visit you in the hospital in the event that you are no longer able to communicate this yourself. You should carry a copy of your hospital visitation authorization with you at all times.
In New Mexico, many people are not aware that the state law includes a provision for a surrogate to make health care decisions for an incapacitated adult if that adult has not signed a power of attorney. Who can act as a surrogate is listed in order of priority, with a married spouse listed first. If there is no spouse, then “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” is authorized to act as the patient’s surrogate. It is not advisable to rely upon this statutory provision, and is recommended that all adults execute powers of attorney naming another adult to make important medical decisions on their behalf should they become incapacitated. Nevertheless, it is good to know that if you have an emergency situation and are without a power of attorney, a long-term domestic partner should be allowed to make medical decisions on behalf of an incapacitated patient.
Wills and Trusts
A will is a legal document that allows you to designate who will receive your property when you die, and how and why they will receive it. If you die without a will, your property will be distributed to your legal heirs. This is called intestate succession. In New Mexico, a same-sex partner is NOT considered to be a legal heir and therefore is not legally entitled to inherit your estate property if you die without a will. If it is important to you to protect your assets for your domestic partner, a consultation with an attorney and drafting a will is an important part of any plan.
Another way to designate who will receive your property upon your death is through a revocable living trust. A living trust is similar to a will in that it allows you to say who should get what; it differs from a will in that property left by a will must go through the court probate process, which can take six months to a year to process. With a living trust, the probate process is avoided. A living trust for a single person or unmarried couple does not typically affect whether or not there will or will not be estate taxes due.
Autopsy and Disposition of Remains
In the absence of written instructions, New Mexico gives your blood relatives the right to control the disposition of your body, including arrangements, upon your death. Written instructions let you express your wishes regarding these issues and name the person you would like to carry them out. In most states, these instructions are legally binding. A durable power of attorney for health-care may authorize the agent to make these decisions regarding autopsy and disposition of remains, but in most states, the power of attorney is no longer valid upon the death of the person granting the power.
Special Note This information has been issued to inform and not to advise. It is based on New Mexico law in effect at the time of writing. The statements are general and individual facts in any given situation may alter their application or involve other laws not referred to here. You should always seek advice from an attorney if any questions arise. This document is intended as a public service and is not an endorsement of any attorney or law firm.
Written and distributed by the
State Bar of New Mexico
5121 Masthead NE • PO Box 92860
Albuquerque, NM 87199-2860
(505) 797-6000 • Fax (505) 828-3765
E-mail: sbnm@nmbar.org
www.nmbar.org
06/05
Download PDF file HERE (104 KB)
