What If the Parent Won't Sign a Power of Attorney for the Child in New Mexico?

The POA Is Off the Table — Here Is What to Do Instead

A Power of Attorney for a minor child under NMSA § 45-5-104 must be executed by a parent or guardian of the minor. If the parent refuses, is unavailable, or cannot be found and no guardian can execute the POA, it is not an option. You cannot work around this — the statute requires an acknowledged power of attorney from a parent or guardian.

But the POA is not your only path. New Mexico has other legal instruments that do not require a parent's cooperation, and they may actually be better for your situation.

Option 1: The Caregiver's Authorization Affidavit

This is the most direct solution. Under NMSA § 40-10B-15, you — the caregiver — execute this form on your own. No parent signature is needed. You fill it out and swear to it before a notary. Items 1–4 authorize enrollment and the medical care listed in the statute; the additional fields give a relative authority to authorize any other medical care.

The court-posted 2001 form has a checkbox specifically for your situation. Item 6 asks whether you notified the parent or whether you are unable to contact them. Check the second option and proceed.

If you are a relative under NMSA § 40-10B-3, you can complete the additional medical-care fields and get authority to authorize other medical, dental, and mental health care. The court-posted PDF numbers those fields Items 5–8; the statute's model form numbers them 5–7. The affidavit lasts up to one year — longer than the POA's six-month maximum.

Option 2: Kinship Guardianship

If the parent is not just unwilling to sign a POA but is actively absent from the child's life, kinship guardianship through the district court may be the right move. Under NMSA § 40-10B-8, you petition the court for legal guardianship of the child.

If the parent consents, the process is straightforward. Without the parent's written consent or a prior court order suspending parental rights, § 40-10B-8(B)(3) requires that the child have lived with you for at least 90 days immediately before filing and that the parent be unwilling or unable to provide adequate care, maintenance, and supervision, or that extraordinary circumstances exist. The court must also find the appointment is in the child's best interests, no guardian may already be appointed under the Uniform Probate Code, and the petitioner must prove the requirements by clear and convincing evidence.

Guardianship is more expensive and time-consuming than the affidavit, but it gives you court-appointed authority that does not expire automatically. A parent who resurfaces cannot end it unilaterally; they must ask the court to revoke it and show changed circumstances and that revocation is in the child's best interests.

Free legal help may be available if you qualify:

• Pegasus Legal Services for Children — provides legal services to kinship caregivers
• New Mexico Legal Aid (NMLA) — serves New Mexico statewide; call its Statewide Intake Line at 1-833-545-4357 to apply
• Law Access New Mexico no longer accepts new intake calls or applications; its website directs applicants to New Mexico Legal Aid.

The Practical Path: Affidavit Now, Guardianship Later

Most families in this situation do both, in sequence:

1. This week: Complete the Caregiver's Authorization Affidavit and get it notarized. Take the child to school, enroll them, and schedule a doctor's appointment. This handles the immediate crisis.

2. This month: Contact Pegasus Legal Services or New Mexico Legal Aid about filing for kinship guardianship. This handles the long-term stability. The court process takes weeks to months, but once the guardianship order is issued, you have permanent authority.

The affidavit bridges the gap. You do not need to wait for a court date to get the child into school and medical care.

What About a Missing Parent?

If the parent cannot be located at all — no phone number, no known address, no recent contact — the affidavit still works. Check the "unable to contact" box on Item 6 of the court-posted form. For a guardianship petition, you still need to serve the parent; if you cannot find them, you may need to ask the court for permission to publish notice in a newspaper.

The CYFD Kinship Navigator at 855-546-1212 can help you document your efforts to locate the parent and connect you with resources for the guardianship filing.

Our New Mexico School and Medical Consent Guide walks through each scenario — parent refusing, parent missing, parent incarcerated — with the specific steps and forms for each situation.

See more New Mexico guides →