Legal Question in Wills and Trusts in New Mexico

Power of attorney entails a duty to act solely for the principle's behalf.

In other words, the person with the power called the attorney-in-fact has been appointed (usually by the principle) to use the power solely on behalf of another person, called the principle, and solely for the principle's own good. If one person wants another to do something for him, particularly something that requires a signature, he may grant that person p.o.a. (by himself signing a written document detailing the powers he's giving to the a-i-f).

There are a couple flavors of them. The most important is the durable flavor -- the power is granted by the principle, yes, but the power is still there even if the principle later becomes unable to (say) grant those powers again, i.e., becomes incompetent or too sick to sign anything, etc. State law covers that and dictates specific "magic" words to put in to effect that feature. There's another variety: a springing power is one that doesn't kick in UNTIL the principle has become incompetent; this feature complicates the situation and makes the p.o.a. harder to use and sometimes useless.

Such powers should only be given to someone you trust completely. The specific powers possible to give are widely varied, and I usually advise giving a lot of powers, which takes up 5 typewritten pages from my office.

The powers are given to someone you have confidence in and trust in all ways. It is only sometimes an attorney, and is most often given by spouses to each other, I'd guess. In some business transactions, it is given to an employee, but for a narrow purpose and often for a limited time only (maybe durable, not springing).

For most purposes, you should have a lawyer draft this document for you. But you really haven't said enough. Why do you ask about it? What is your need, exactly?

As for the will, there are many, many situations where you should use a lawyer, but often it is unnecessary (and using one of those software programs you can buy will do fine). How to know???? You asked the right person. For general information only, visit my website "Do I really need a will?" at http://www.tiac.users/meridian and read through and answer the questionnaire. My questionnaire applies to Mass. law, but you can take the list of your answers to an NM lawyer and it will be a good start to get his legal advice. If you "REALLY" need a will, you probably also need a lawyer.

Good luck. Let me know if you need a reference to a NM lawyer, and in what area you live.

What is a Power of Attorney?

A Power of Attorey (POA) grants someone else the legal power to stand in for the person who granted the power. Example: If Mother gives Daughter a full authority POA, Daughther may then do anything (legally) Mother could have done alone -- open bank accounts, cash checks, buy and sell real estate, etc.

There is a very lengthy and complete POA on our web site if you want to download it. However, it is tailored to the State of Georgia , not NM.

You may write and execute your own will, as long as it complies with the basic state formalities for wills: Usually: In writing, 2 witnesses who sign in the presence of the Testator.

Power of attorney

The power of attorney allows someone to appoint an agent to take care of things for them--the document can allow the agent to do many things, or perhaps only one thing.

A durable power of attorney is effective even after the person loses competence--this is the type to look for when planning for incompetency. It usually must state that it is durable for it to be considered durable under state law.

Powers of attorney can cover all types of matters, and in California, there is a special form for a health care power of attorney as well, to allow someone else to make medical decisions for you if you are unable to do so.

To prepare a power of attorney, you should see an attorney--likewise for the will. An estate planning lawyer is best, as he/she has more experience in drafting wills, trusts, and powers of attorney.

You can purchase ready-made forms, but these often do not work as well as attorney-drafted ones, and once you're incompetent, it's too late to fix that. The cost should be fairly reasonable for both the power of attorney and the will.