24-7A-5. Decisions by surrogate.

   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.