2020 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 5B - Uniform Power of Attorney
Part 1
Section 45-5B-102 - Definitions.
As used in the Uniform Power of Attorney Act:
A. "agent" means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact or otherwise. The term includes an original agent, co-agent, successor agent and a person to which an agent's authority is delegated;
B. "durable", with respect to a power of attorney, means not terminated by the principal's incapacity;
C. "electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;
D. "good faith" means honesty in fact;
E. "incapacity" means inability of an individual to manage the individual's estate or financial affairs, or both, because:
(1) of gross mismanagement, as evidenced by recent behavior, of the individual's income and resources or the individual's medical inability to manage the individual's income and resources that has led, or is likely in the near future to lead, to financial vulnerability; or
(2) the individual is:
(a) missing;
(b) detained, including incarcerated in a penal system; or
(c) outside the United States and unable to return;
F. "person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or any other legal or commercial entity;
G. "power of attorney" means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term "power of attorney" is used;
H. "presently exercisable general power of appointment", with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal's estate, the principal's creditors or the creditors of the principal's estate. The term includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard or the passage of the specified period. The term does not include a power exercisable in a fiduciary capacity or only by will;
I. "principal" means an individual who grants authority to an agent in a power of attorney;
J. "property" means anything that may be the subject of ownership, whether real or personal, or legal or equitable, or any interest or right therein;
K. "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
L. "sign" means with present intent to authenticate or adopt a record:
(1) to execute or adopt a tangible symbol; or
(2) to attach to or logically associate with the record an electronic sound, symbol or process;
M. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; and
N. "stocks and bonds" means stocks, bonds, mutual funds and all other types of securities and financial instruments, whether held directly, indirectly or in any other manner. The term does not include commodity futures contracts and call or put options on stocks or stock indexes.
History: Laws 2007, ch. 135, § 102; 1978 Comp., § 46B-1-102 recompiled as § 45-5B-102 by Laws 2011, ch. 124, § 102.
ANNOTATIONSRecompilations. — Laws 2011, ch. 124, § 102 recompiled former 46B-1-102 NMSA 1978 as 45-5B-102 NMSA 1978, effective January 1, 2012.
Power to be granted during period of competency. — Although this section allows the exercise of a power of attorney during a period of incompetency, if the writing conferring the power expressly provided therefor, the initial granting of the power must be during a period of competency. Roybal v. Morris, 1983-NMCA-101, 100 N.M. 305, 669 P.2d 1100 (decided under former law).
Effect of insanity on power of attorney. — A power of attorney is revoked by operation of law upon an adjudication of insanity, unless the power is irrevocable; if the agent's authority is "coupled with an interest," the principal's insanity does not terminate the agency. In re Estate of Head,1980-NMCA-096, 94 N.M. 656, 615 P.2d 271 (decided under former law).
Power granted to wife to act "without limitation" for husband are "similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding later disability or incapacity of the principal." In re Estate of Head,1980-NMCA-096, 94 N.M. 656, 615 P.2d 271 (decided under former law).
