Surrogate Decision-Making in Nebraska

  1. ORGANIZING DOCUMENTS
    Locate, review and revise, if necessary:
    • Insurance policies
    • Deeds to real estate
    • Certificates of deposit
    • Stocks and mutual funds
    • Wills
      • No legal authority during a person's lifetime
      • Property is distributed after death
    • Government benefits
      • Medicaid or SSI eligibility
      • VA benefits
  2. NON-HEALTH CARE DECISIONS
    1. Durable Power of Attorney

      1. Definition:
        A power of attorney is an instrument in writing by which one person, as principal, appoints another as his agent and confers upon him the authority to perform certain specified acts or kinds of acts.

        "Durable" language is that language showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incapacity.

      2. Statutory Authority:
        Uniform Durable Power of Attorney Act, Sections 30-2664 to 30-2672. Nebraska Short Form Act, Sections 49-1501 to 49-1561
      3. Scope of Authority:
         The authority given to the agent, known as the "attorney-in-fact," may be for a limited purpose such as depositing checks and paying bills, or the authority may be general which would allow the person to do almost everything the principal could do if acting on his own behalf.

        NOTE: Gifting is NOT allowed unless power is specifically granted.
      4. Revocation:
         A power of attorney may be revoked at any time, as long as the principal remains competent, by simply notifying the attorney-in-fact in writing.

        Death of the principal acts as revocation as soon as the attorney-in-fact receives notice of the death.


    2. Guardianship
      1. Definition:
        The appointment by the court of an individual, known as a guardian, to assume decision-making and handle the affairs of an individual, known as the ward, whom the court has found to be incompetent or incapacitated.
      2. Procedure:
         Nebraska Revised Statutes, Sections 30-2617 to 30-2629.
        1. File petition in your county court
        2. Written notice served by the sheriff
        3. Guardian appointed
        4. Hearing
        5. Letter of guardianship issued by the court

      3. Scope of Authority:
        1. Selecting abode
        2. Arranging for medical care
        3. Protecting personal effects
        4. Giving necessary consent, approval or release
        5. Arranging for training, education or other rehabilitating services
        6. Applying for private or government benefits
        7. Instituting proceedings to compel support, if no conservator
        8. Entering into contractual arrangements, if no conservator
        9. Receiving money for expenses, if no conservator

    3. Conservatorship
    1. Definition:
       The appointment by the court of an individual, known as a conservator, to assume management of property and financial affairs of a person whom the court has found to be unable to manage his or her property and property affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, or lack of discretion in managing benefits received from public funds…AND that person has property which will be wasted or dissipated unless proper management is provided.

    2. Procedure:
       Nebraska Revised Statutes, Sections 30-2630 to 30-2643.

      1. File petition in your county court
      2. Written notice served by the sheriff
      3. Hearing

    3. Scope of Authority:
      The court has all the powers over the estate and affairs which the protected person could exercise if present and not under disability, except the power to make or alter an estate plan. Including the power to:
    1. Make gifts (only after hearing and notice)
    2. Convey or release interests in property (only after hearing and notice)
    3. Exercise or release powers as trustee
    4. Enter into contracts
    5. Create revocable or irrevocable trusts (only after hearing and notice)
    6. Exercise options to purchase securities or other property
    7. Elect options and change beneficiaries under insurance (only after hearing and notice).

  3. HEALTH CARE DECISIONS
    1. Health Care Power of Attorney

      1. Definition:
         A health care power of attorney is a document which appoints an individual to make health care decisions on behalf of the principal should that individual become unable to do so.

        In Nebraska, the Health Care Power of Attorney Act, Sections 30-3401 to 30-3432, provides the framework for these documents.

      2. Execution:
        1. Must be in writing
        2. Identify the principal, attorney-in-fact, and successor
        3. Specifically authorize health care decisions
        4. Include date of execution
        5. Signed by two witnesses and notary public

      3. Scope of Authority:
        The attorney-in-fact has no authority to withhold or withdraw consent to routine care necessary to maintain patient comfort or the usual and typical provisions of nutrition and hydration. The attorney-in-fact shall not have the authority to consent to the withholding or withdrawing of a life-sustaining procedure or artificially administered nutrition or hydration unless explicitly authorized by the document.
      4. How It Becomes Operative:
        1. Incapacity - defined as the inability to understand and appreciate the nature and consequences of health care decisions, including the benefits of, risks of, and alternatives to any proposed health care or the inability to communicate in any manner an informed health care decision.
        2. The attending physician and any consulting physician make the determination of incapacity in writing.
        3. The document remains in effect until the principal dies, until revoked, or until the attorney-in-fact withdraws. A decision made by the attorney-in-fact may be revoked at any time by a principal who is competent and in any manner by which the principal is able to communicate intent to revoke.


    2. Living Will
      1. Definition:
         A living will is simply a written declaration regarding an individual's wishes if life-sustaining medical treatment should become necessary. In Nebraska, the Rights of the Terminally Ill Act, Sections 20-401 to 20-416, gives the framework for living wills.

      2. Execution:
        1. Must be an adult of sound mind
        2. Signed in the presence of two witnesses and notary public


      3. How It Becomes Operative:
        1. Communicated to the attending physician
        2. Declarant determined to be terminal or PVS (persistent vegetative state)
        3. Physician determines declarant unable to make decisions
        4. Notification of intent to invoke Living Will
        5. May revoke at any time and in any manner

    3. Advance Directives - Federal Involvement
       Under federal law, health care providers such as hospitals and nursing homes are required to inform all patients of their right to execute an "advance directive" such as a Living Will or HCPA (Healthcare Power of Attorney). There is NO requirement under the law that each patient actually executes such a directive.

Compiled by the Lincoln/Greater Nebraska Chapter of the Alzheimer's Association, 1999.