Legal Question in Elder Law in New Mexico

We live in New Mexico. 5 years ago when my husband was diagnosed with early stages of alzhmiers, we were advised (and followed) to have him make a durable power of attorney while he was capable to do so. He did make one making me, his wife the only person with the durable power of attorney over his affairs. His condition has deteriorated, and he has been admitted into an Assitted Living Facility. Now, I have been informed that he had requested that to see the social worker associated with the facility and has executed a new durable power of attorney naming one son that lives in California. No one at the Assitted Living Facility notified me of this change. My son called me to tell me he had it and was going to try and take care of things. When I confronted the facility, all they said was they could not say anything, and the social worker says if the patient asks for it, then he gets to make his changes and its final. How can that be legal if his mental abilities are worse now - dementia as well as alzhmiers - yes, he does have moments of clarity, but not all the time.


Asked on 6/24/10, 9:21 am

1 Answer from Attorneys
Charles Aspinwall Charles S. Aspinwall, J.D., LLC

Unless he has been declared incompetent by a court, he is free to do as he wishes. Incompetency may be raised as a defense if the new POA does anything illegal or outside the authority granted by the POA.

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Answered on 6/27/10, 5:09 pm


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