New Mexico Q and A

Ten commonly asked questions about PAD’s for New Mexico

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s Statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice. These answers are accurate as of September 2019.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  New Mexico’s Mental Health Care Treatment Decisions Act allows you to write instructions for your psychiatric treatment in the event that you are incapable to make or communicate those instructions. The statute also allows you to appoint an agent to instruct mental health care professionals for you. In New Mexico, a PAD is known as an “advance directive for mental health treatment”.  The statute includes a standard form, which is not mandatory but is recommended.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  You may use your advance directive for mental health treatment to express any and all wishes you have about your mental health treatment, including refusals of treatment.  You may also give instructions orally by personally informing your health care provider.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?  

Yes. The part of the PAD in which you appoint an agent is known as the “power of attorney”.  The power of attorney must be in writing and must be signed by an adult witness who knows you personally.  The witness must attest that you “appeared to have capacity” when you created the PAD and that you were not acting under duress or fraud.  The witness must not be your agent, an employee of your health care organization, a beneficiary of your estate or a relative of yours.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  The statute says that your agent can make decisions for you about all psychiatric services, including refusals.  The exception is hospitalization: your agent may present you to a psychiatric facility for evaluation but may not formally admit you to that facility.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?   

Your mental health care representative must use substituted judgment as far as possible, after which he/she must act in your best interests.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  You may do one, the other, or both.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  What is required is that a qualified health care professional plus a mental health treatment provider determine that you lack the ability to understand and appreciate the nature and consequences of proposed mental health treatment, and/or the ability to communicate a choice.  You have the right to challenge this determination.  If you do so, you will not be declared incompetent unless and until a court makes a finding of incompetence.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  Your providers could decline to follow your PAD if: (1) the treatment requested is considered “infeasible” or is unavailable; (2) the PAD requests treatment which the provider is not licensed or authorized to give; (3) the treatment requested conflicts with other law (including involuntary treatment law); or (4) the treatment or refusal of treatment is “medically ineffective” or not in accordance with “generally accepted health care standards”.

10.  How long does my PAD remain valid?

Your PAD remains valid until you revoke it.  You may revoke it at any time you do not lack capacity.