By Erin M. Marshall , Founder and Managing Attorney| Firecrest Injury Law
Who would make medical decisions for you if you were suddenly unable to speak for yourself? Would that person know what treatments you would want—and which you would refuse?
These are questions most of us would rather postpone. But serious illness, an unexpected accident, or complications during surgery can leave anyone temporarily or permanently unable to communicate.
Advance health care directives allow New Mexicans to make important medical decisions before a crisis occurs. They protect patient autonomy, provide guidance to medical professionals, and help families navigate some of life’s most difficult moments.
New Mexico law recognizes an individual’s right to make decisions about their own medical care, including the right to accept or refuse treatment.
What Is an Advance Health Care Directive?
An advance health care directive is a legal document that communicates your medical preferences and may designate someone to make health care decisions on your behalf if you become unable to do so.
In New Mexico, advance directives are governed by the Uniform Health-Care Decisions Act, NMSA 1978, §§ 24-7A-1 through 24-7A-18.
The law provides an optional statutory form that combines two important tools:
- A power of attorney for health care, which designates someone to make medical decisions on your behalf.
- An individual health care instruction, commonly called a living will, which describes the care and treatments you want or do not want under particular circumstances.
These documents work together but serve different purposes.
1. Power of Attorney for Health Care: Choosing Someone You Trust
A power of attorney for health care allows you to appoint a trusted person, called your health care agent, to make medical decisions when you cannot make those decisions yourself.
Your agent might be your spouse, adult child, sibling, close friend, or another trusted individual.
The most important qualification is not the person’s relationship to you. It is whether that person understands your values and will respect your decisions, even when those decisions are emotionally difficult.
Your health care agent may be called upon to make decisions about surgery, medications, life-sustaining treatment, or other medical interventions.
A health care power of attorney does not automatically give your agent authority over your finances or property. Those responsibilities generally require separate legal authorization.
Choosing your agent deserves careful consideration. Talk with the person before naming them. Make sure they are willing to accept the responsibility and understand what matters most to you.
2. Living Will: Putting Your Medical Wishes in Writing
A living will, also called an instruction directive, allows you to describe your preferences for medical treatment if you cannot communicate those preferences yourself.
For example, you may want to address:
- Whether you would want mechanical ventilation if you could not breathe independently.
- Whether you would want artificial nutrition or hydration under particular circumstances.
- Whether you would want cardiopulmonary resuscitation (CPR).
- Whether you would prefer comfort-focused treatment rather than interventions intended primarily to prolong life.
- What circumstances would make continued life-sustaining treatment acceptable or unacceptable to you.
These decisions are deeply personal. There is no single correct approach.
Some people want every medically appropriate intervention available. Others place greater importance on avoiding invasive treatments when recovery is unlikely. Many people want different treatments depending on the circumstances and prospects for recovery.
The purpose of an advance directive is not to encourage one choice over another. It is to ensure that the choice belongs to the patient.
3. How Is an Advance Directive Different From a DNR or Medical Order?
Advance directives, do-not-resuscitate orders, and medical orders for life-sustaining treatment are related, but they are not interchangeable.
An advance directive communicates your wishes and identifies who may speak for you.
A do-not-resuscitate (DNR) order is a medical order addressing whether CPR should be attempted if your breathing or heartbeat stops.
Medical orders addressing the scope of treatment, including forms used for seriously ill patients, translate current treatment decisions into instructions that health care professionals can implement.
An advance directive may express your preference against resuscitation, but that preference does not necessarily substitute for the medical orders or emergency documentation needed in a particular setting.
If you have a serious illness or specific concerns about emergency treatment, discuss the appropriate medical orders with your health care provider.
4. Do I Need an Attorney to Complete an Advance Directive in New Mexico?
Not necessarily.
New Mexico law permits adults and certain other individuals to provide health care instructions and appoint health care agents. The law includes an optional statutory advance directive form, but that form is not mandatory.
Under NMSA 1978, § 24-7A-2, an adult or emancipated minor may give an individual instruction orally or in writing. A power of attorney for health care must satisfy the applicable statutory requirements.
Although New Mexico provides considerable flexibility, written directives offer important practical advantages.
A clear written document can reduce uncertainty, help prevent family disagreements, and give medical professionals reliable guidance when time is limited.
For individuals with complicated family circumstances, conflicting preferences among relatives, or concerns about how medical decisions will be implemented, legal advice may be helpful.
5. What Happens If I Do Not Have an Advance Directive?
If you lose the ability to make medical decisions and have not appointed an agent, New Mexico law provides a process for identifying a surrogate decision-maker.
Under NMSA 1978, § 24-7A-5, certain family members and other qualifying individuals may be eligible to act as surrogates.
However, relying on that process can create uncertainty, particularly when family members disagree about your wishes or when several individuals believe they should be involved.
Without clear instructions, even well-intentioned family members may struggle to answer questions about treatments, prognosis, and quality of life.
An advance directive does not eliminate every difficult decision, but it can give your family a clearer understanding of what you would have wanted.
6. When Should You Create or Update an Advance Directive?
Advance health care planning is appropriate for adults of all ages.
A serious car accident, stroke, surgical complication, or unexpected illness can affect someone who was previously healthy.
It is also wise to review your directive after major life changes, including marriage, divorce, the death of a designated agent, a significant medical diagnosis, or a change in your treatment preferences.
Consider reviewing your directive periodically and discussing it with your health care agent and medical providers.
Most importantly, make sure the people who may need your directive know where to find it.
7. Patient Autonomy and New Mexico’s End-of-Life Laws
New Mexico has a significant legal history surrounding patient autonomy and end-of-life decision-making.
From 2012 through 2016, Morris v. Brandenburg examined whether the New Mexico Constitution protected a terminally ill patient’s right to physician aid in dying.
Although the New Mexico Supreme Court ultimately declined to recognize physician aid in dying as a fundamental constitutional right, the litigation helped bring questions of personal autonomy, medical decision-making, and dignity at the end of life into public discussion.
In 2021, the New Mexico Legislature enacted the Elizabeth Whitefield End-of-Life Options Act, establishing a legal process through which eligible terminally ill adults may request medical aid in dying.
Advance directives and medical aid in dying are different legal mechanisms.
An advance directive helps guide medical care when a patient cannot make or communicate decisions. Medical aid in dying under the 2021 Act requires a qualified patient to meet specific statutory criteria and participate voluntarily in the process.
Both reflect a broader principle: individuals should have meaningful information and a voice in decisions affecting their bodies, medical treatment, and end-of-life care.
8. Five Practical Steps to Protect Your Medical Wishes
- Consider your values. Think about what quality of life, independence, comfort, and medical treatment mean to you.
- Choose a health care agent. Select someone who understands your wishes and can communicate effectively with medical professionals.
- Document your preferences. Use New Mexico’s statutory form or another legally appropriate directive.
- Talk with your family and providers. A document is most effective when the people responsible for implementing it understand your choices.
- Make your directive accessible. Provide copies to your agent, appropriate family members, and health care providers.
What If Your Advance Directive Is Not Honored?
Creating an advance directive is only part of protecting your medical decisions. Health care providers must also respond appropriately to legally valid instructions and decisions made by authorized agents.
New Mexico law provides protections for patient choices, although there are circumstances in which providers may decline to comply with particular treatment requests.
If you believe your directive or a loved one’s directive has been disregarded, understanding those protections is important.
Related reading: When Advance Health Care Directives Are Violated in New Mexico: Patient Rights and Legal Options.
Protecting Patient Rights in New Mexico
At Firecrest Injury Law, we believe that respect for patient autonomy is an essential part of responsible medical care.
Our practice includes medical negligence and patient rights matters, including situations where failures in medical decision-making may have caused serious harm.
If you believe a health care provider disregarded a patient’s legally protected medical decisions and caused harm, we can review the circumstances and discuss whether legal remedies may be available.
Schedule a Consultation with Firecrest Injury Law at 505-900-8183.
About the Author
Erin M. Marshall is the founder and managing attorney of Firecrest Injury Law in Albuquerque, New Mexico. Before becoming an attorney, she spent more than 20 years working in health policy, legislative advocacy, and community organizing. From 2012 to 2016, she served as New Mexico Campaign Manager for Compassion & Choices, supporting community education and organizing surrounding Morris v. Brandenburg. Her work included collaboration with plaintiffs, physicians, witnesses, and legal teams on questions of patient autonomy and end-of-life rights.
Attorney Advertising / Disclaimer: This article is provided for general educational purposes and is not a substitute for individualized medical advice or legal advice. Reading this article or contacting Firecrest Injury Law, LLC or the New Mexico Civil Rights Advocacy Group, LLC does not create an attorney-client relationship. This firm does not represent you unless we have a formal signed agreement. Civil rights claims are fact-specific and may be subject to deadlines, defenses, immunities, and other legal requirements.
