A. A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined according to the provisions of Section 24-7A-11 NMSA 1978 to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.

B. An adult or emancipated minor, while having capacity, may designate any individual to act as surrogate by personally informing the supervising health-care provider. In the absence of a designation or if the designee is not reasonably available, any member of the following classes of the patient's family who is reasonably available, in descending order of priority, may act as surrogate:

(1) the spouse, unless legally separated or unless there is a pending petition for annulment, divorce, dissolution of marriage or legal separation;

(2) 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;

(3) an adult child;

(4) a parent;

(5) an adult brother or sister; or

(6) a grandparent.

C. If none of the individuals eligible to act as surrogate under Subsection B of this section is reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values and who is reasonably available may act as surrogate.

D. A surrogate shall communicate his assumption of authority as promptly as practicable to the patient, to members of the patient's family specified in Subsection B of this section who can be readily contacted and to the supervising health-care provider.

E. If more than one member of a class assumes authority to act as surrogate and they do not agree on a health-care decision and the supervising health-care provider is so informed, the supervising health-care provider shall comply with the decision of a majority of the members of that class who have communicated their views to the provider. If the class is evenly divided concerning the health-care decision and the supervising health-care provider is so informed, that class and all individuals having lower priority are disqualified from making the decision.

F. A surrogate shall make a health-care decision in accordance with the patient's individual instructions, if any, and other wishes to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate's determination of the patient's best interest. In determining the patient's best interest, the surrogate shall consider the patient's personal values to the extent known to the surrogate.

G. A health-care decision made by a surrogate for a patient shall not be made solely on the basis of the patient's pre-existing physical or medical condition or pre-existing or projected disability.

H. A health-care decision made by a surrogate for a patient is effective without judicial approval.

I. A patient, at any time, may disqualify any person, including a member of the patient's family, from acting as the patient's surrogate by a signed writing or by personally informing a health-care provider of the disqualification. A health-care provider who is informed by the patient of a disqualification shall promptly communicate the fact of disqualification to the supervising health-care provider and to any health-care institution at which the patient is receiving care.

J. Unless related to the patient by blood, marriage or adoption, a surrogate may not be an owner, operator or employee of a health-care institution at which the patient is receiving care.

K. A supervising health-care provider may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority.

History: Laws 1995, ch. 182, § 5; 1997, ch. 168, § 4.

The 1997 amendment, effective July 1, 1997, added "and to the supervising health-care provider" at the end of Subsection D; added Subsection G; and made stylistic changes.

Conditions precedent for surrogate decisions. — Before a surrogate may make health-care decisions and enter into an agreement to admit a person who lacks capacity to a health-care institution, there must be a showing that the person was admitted based on the conclusions of two physicians that the person lacked capacity, and if there exists an individual with the express power to make health-care decisions on behalf of the person, there must be a showing of that individual's approval or unavailability before the surrogate may make health-care decisions. Corum v. Roswell Senior Living, LLC, 2010-NMCA-105, 149 N.M. 287, 248 P.3d 329, cert. denied, 2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146.

Conditions precedent for surrogate decisions. — Where the decedent was admitted into defendant's nursing home by the decedent's spouse; the decedent lacked capacity to enter into an admission agreement; the decedent's spouse signed an admission agreement that contained an arbitration clause; the decedent's spouse had no written authority designating the spouse as an agent with power of attorney, guardian, or surrogate; at the time the decedent's spouse signed the admission agreement, the decedent's child had durable financial and medical power of attorney over the decedent; the administrator of the nursing home attempted to telephone the decedent's child, but was unsuccessful; and there was no indication that two physicians had determined that the decedent lacked capacity at the time the decedent's spouse signed the admission agreement, the decedent's spouse did not have power to enter into the arbitration agreement. Corum v. Roswell Senior Living, LLC, 2010-NMCA-105, 149 N.M. 287, 248 P.3d 329, cert. denied, 2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146.