A. A power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.

B. If a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.

C. If a power of attorney becomes effective upon the principal's incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by:

(1) a physician or licensed psychologist that the principal is incapacitated within the meaning of Paragraph (1) of Subsection E of Section 102 [45-5B-102 NMSA 1978] of the Uniform Power of Attorney Act; or

(2) an attorney at law, a judge or an appropriate governmental official that the principal is incapacitated within the meaning of Paragraph (2) of Subsection E of Section 102 of the Uniform Power of Attorney Act.

D. A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal's personal representative pursuant to the federal Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 U.S.C. Section 1320d, as amended, and applicable regulations to obtain access to the principal's health care information and communicate with the principal's health care provider.

History: Laws 2007, ch. 135, § 109; 1978 Comp., § 46B-1-109 recompiled as § 45-5B-109 by Laws 2011, ch. 124, § 102.

Recompilations. — Laws 2011, ch. 124, § 102 recompiled former 46B-1-109 NMSA 1978 as 45-5B-109 NMSA 1978, effective January 1, 2012.

Cross references. — For the federal Health Insurance Portability and Accountability Act of 1996, see 42 U.S.C. 300gg.