A. A guardian shall comply with the protected person's individual instructions made while the protected person had capacity and shall not disregard the protected person's preferences contained in an advance health-care directive unless the appointing court expressly so authorizes after notice to the agent, if any, and the protected person. The court may disregard such preferences if it finds by clear and convincing evidence that the preferences do not accurately reflect the free choice of the protected person at the time of making the individual instructions or that the protected person revoked the individual instructions while the protected person had capacity pursuant to Subsection B of Section 24-7A-3 NMSA 1978. This provision does not affect the court's ability to grant relief pursuant to a petition as provided in Section 24-7A-14 NMSA 1978.

B. A health-care decision of an agent appointed by a person having capacity takes precedence over that of a guardian, unless the appointing court expressly directs otherwise after notice to the agent and the protected person.

C. Subject to the provisions of Subsections A and B of this section, a health-care decision made by a guardian for the protected person is effective without judicial approval, if the appointing court has expressly authorized the guardian to make health-care decisions for the protected person, in accordance with the provisions of Section 45-5-312 NMSA 1978, after notice to the protected person and any agent.

History: Laws 1995, ch. 182, § 6; 2009, ch. 159, § 2.

The 2009 amendment, effective June 19, 2009, changed "ward" to "protected person"; and in Subsection A, between "shall comply with the" and "advance health-care directive", changed "ward's individual instructions and may not revoke the ward's" to "protected person's individual instructions made while the protected person had capacity and shall not disregard the protected person's preferences contained in an"; and added the second and third sentences.