Default Health-Care Surrogate Priority in New Mexico

At a glance

Requirements one by one

When the default route opens

The patient is presumed capable. Unless a written directive provides otherwise, two qualified health-care professionals, including the primary care practitioner, must determine lack of capacity (§ 24-7A-11(B)–(C)). Disagreeing with recommended treatment alone cannot establish incapacity; the patient can challenge a finding, and the challenge prevails unless a court orders otherwise (§ 24-7A-11(D)–(E)). A surrogate may act only when no agent or guardian is appointed or reasonably available (§ 24-7A-5(A)).

Care or setting covered

Health care covers care affecting physical or mental conditions. The statutory decisions include selecting practitioners or institutions, approving tests, surgery or medication, and directions about resuscitation, life support, and artificial nutrition (§ 24-7A-1(F)–(H)). The general surrogate provision does not impose a hospital-only or nursing-home-only setting limit.

Family and partner order

While capable, an adult or emancipated minor may designate anyone as surrogate by personally telling the supervising provider. Without an available designee, § 24-7A-5(B) ranks a spouse unless legally separated or a petition for annulment, divorce, dissolution, or legal separation is pending; a partner in a committed long-term relationship of indefinite duration with mutual responsibility for well-being; an adult child; a parent; an adult sibling; then a grandparent. Only when those people are unavailable may an adult who has shown special care and concern and knows the patient's values act (§ 24-7A-5(C)).

If multiple members of the same class assume authority and disagree, the supervising provider follows the majority of those who communicated their views. An even split disqualifies that entire class and all lower classes for that decision (§ 24-7A-5(E)).

Who is available and eligible

“Reasonably available” means reachable without undue effort and willing and able to act in time for the patient's care (§ 24-7A-1(S)). A surrogate must promptly notify the patient, readily contacted listed family members, and supervising provider of assuming authority. The patient may disqualify anyone, even a relative, by signed writing or personal notice to a provider; the provider may demand a declaration under penalty of perjury establishing claimed authority (§ 24-7A-5(D), (I), (K)). An unrelated owner, operator, or employee of the treating institution cannot serve (§ 24-7A-5(J)).

Decisions limited or excluded

The surrogate follows the patient's known instructions and wishes; otherwise the surrogate decides in the patient's best interest while considering known values. A decision cannot rest solely on a pre-existing condition or disability (§ 24-7A-5(F)–(G)). Although health-care decisions include life-sustaining treatment and artificial nutrition, § 24-7A-13(E) does not permit an agent or surrogate to consent to admission to a mental health-care facility. If a written directive expressly permits treatment there, the agent or surrogate may present the patient for evaluation for admission.

No surrogate or disputed authority

A patient, agent, guardian, surrogate, treating provider or institution, or person eligible under § 24-7A-5(B)–(C) may petition the district court to enjoin or direct a health-care decision or order other equitable relief (§ 24-7A-14). An agent's decision normally prevails over a guardian's; the appointing court may direct otherwise after notice to both the agent and protected person (§ 24-7A-6(B)).

What trips people up

A grandparent is expressly in the family ladder, after adult siblings. The caring adult is a separate last route, available only if nobody eligible under the designation or family provision is reasonably available (§ 24-7A-5(B)–(C)).

Common questions

Can one adult child act when other children disagree?

If multiple children assume authority and the provider is informed of their disagreement, the provider follows the majority of children who communicated their views. A tie disqualifies the children and all lower classes for that decision (§ 24-7A-5(E)).

Does a surrogate need advance court approval?

No. A surrogate's decision is effective without judicial approval, though § 24-7A-14 permits a qualifying person or provider to seek court relief (§ 24-7A-5(H)).

Statutes and sources

• N.M. Stat. Ann. §§ 24-7A-1, 24-7A-5–6, 24-7A-11, 24-7A-13–14 — definitions, surrogate priority, guardian interaction, capacity, decision limits, and court relief: https://nmonesource.com/nmos/nmsa/en/4384/1/document.do (accessed 2026-10-08).