Medical power of attorney in Nebraska: how it works, how to sign

The question under every medical power of attorney is a simple one. If you can't speak for yourself, who talks to the doctor?

Nebraska calls the document a "power of attorney for health care." This page covers how to sign one, who can't be your witness, how the living will fits in, and what happens if you name nobody. It is part of our estate planning guides for every state. For the basics of the role, see what a medical power of attorney is.

How do I sign a power of attorney for health care in Nebraska?

The document must be in writing. It names you, your agent (Nebraska says "attorney in fact") and any successor. It must specifically authorize your agent to make health care decisions if you can't, and it must show the date (Neb. Rev. Stat. 30-3404).

Then it needs one of these:

• Two adult witnesses, each of whom sees you sign or hears you acknowledge your signature, and each signs a short statutory declaration, or
• A notary, who is not your agent or your successor agent.

Nebraska publishes an optional form (Neb. Rev. Stat. 30-3408). You don't have to use its wording, but the document must meet the rules above. A health care power of attorney valid in another state is valid in Nebraska.

This differs from Nebraska's financial power of attorney, which must be notarized. Our Nebraska power of attorney guide covers that one.

Who can't be my witness?

Nebraska's list is long, and it trips people up. None of these people may witness your health care power of attorney (Neb. Rev. Stat. 30-3405):

• Your spouse, parent, child, grandchild or brother or sister
• Anyone who would inherit from you, by law or under your will
• Your attending physician or a member of your mental health treatment team
• A romantic or dating partner
• Your agent or successor agent
• An employee of your life or health insurance company

Also, no more than one witness may work for a health care provider that is treating you.

That leaves friends, neighbors and coworkers who aren't in your will. If finding two is hard, a notary is the simple way around it. The notary just can't be your agent.

What can my agent decide?

Your agent makes the health care decisions you would make if you could. In day-to-day terms, that means talking with your doctors, reading your chart, and agreeing to or declining a test, a surgery or a new medicine in light of your wishes.

Your agent is a fiduciary: legally required to act in your interest and follow what you wrote.

Nebraska also lets you include health care powers inside your financial power of attorney, but only if that part meets every health care rule above, witnesses included (Neb. Rev. Stat. 30-3404). Most people keep them as two separate documents.

Do I need a living will too?

Many people sign both. A health care power of attorney names a person. A living will writes down your wishes, so that person isn't guessing.

Nebraska's living will is called a "declaration" under its Rights of the Terminally Ill Act. An adult of sound mind may sign one about withholding or withdrawing life-sustaining treatment (Neb. Rev. Stat. 20-404).

It is signed by you, or by someone at your direction, and witnessed by two adults or a notary. The witness limits are narrower than for the health care power of attorney:

• No more than one witness may work for a health care provider treating you.
• No witness may work for your life or health insurance company.
• Those limits don't apply to a notary.

Nebraska offers an optional form. It covers a persistent vegetative state or an incurable and irreversible terminal condition.

Our post on health care power of attorney vs living will explains how the two work together, and treatment preferences helps you think through what to write.

Who decides if I haven't named anyone?

Nebraska's Health Care Surrogacy Act decides. It applies once your provider determines in writing that you can't make decisions (Neb. Rev. Stat. 30-606), and you have no agent or guardian (Neb. Rev. Stat. 30-604).

First, you can choose a surrogate yourself just by telling your primary health care provider. Otherwise, these people may act, in this order:

So a close friend can serve. The law makes such a friend "eligible to act as a surrogate," though it doesn't give the friend a numbered place in the family order.

A few more rules:

• If several people share a level, such as three adult children, they must agree in a signed, dated writing. If they can't agree in time, the provider may turn to others.
• You can rule someone out, in writing or by telling your provider and a witness.
• Unless related to you, the owners and staff of the facility treating you can't serve as surrogate (Neb. Rev. Stat. 30-605).
• A surrogate's authority ends if you move to another health care facility, among other events.

If nobody is available, your provider may act in line with your known values and best interests.

If the person who really knows your wishes is a friend, a partner or a niece, naming them in a power of attorney for health care moves them to the front. Our page on who decides for you walks through this, and the 50-state guide to default decision-makers compares other states.

Here is a typical case, a composite. Carol is 71, divorced, and lives in Omaha. Her daughter lives in Phoenix. Her friend Jean has gone to every appointment for years. Carol names Jean as her health care agent and her daughter as backup. A notary at her credit union handles the signing, since her own relatives can't witness.

How do I choose my agent?

The practical questions matter most. Is the person willing? Can they get to the hospital? Will they follow your wishes even when they'd choose differently?

A short checklist:

• They know what you want, because you've told them.
• They can stay calm in a hospital hallway and ask questions.
• They live close enough, or can travel when needed.
• You've named a backup in case they can't.

Our post on how to choose a medical power of attorney has more questions to ask.

Some people would like a professional standing by, first or behind a friend. A Kinly membership includes a medical power of attorney written for your state, and Trella Trust Company can be named in the role, first or as the backup to someone you choose.

Once your health papers are done, our Nebraska probate guide covers what happens to your home and savings later.

Common questions

Does a medical power of attorney need to be notarized in Nebraska?

Not necessarily. It needs either two qualified adult witnesses or a notary. The notary can't be your agent or successor agent.

Can a family member witness my Nebraska health care power of attorney?

No. Your spouse, parents, children, grandchildren, siblings and anyone who would inherit from you are all ruled out. A friend who isn't in your will, or a notary, works.

Who makes medical decisions in Nebraska if there's no power of attorney?

A surrogate you named by telling your provider comes first. Otherwise your spouse, then an adult child, a parent, and an adult sibling. A close friend who knows your values is also eligible.

Can a close friend make medical decisions for me in Nebraska?

Yes. A friend who has shown special care and concern and knows your values is eligible to act as surrogate. Naming the friend as your health care agent is still the surest way.

How is a Nebraska living will signed?

Before two adult witnesses or a notary. No more than one witness may work for a provider treating you, and none may work for your life or health insurer.

Sources

• Neb. Rev. Stat. 30-3404: Power of attorney for health care; contents (Nebraska Legislature)
• Neb. Rev. Stat. 30-3405: Witness; disqualification; declaration (Nebraska Legislature)
• Neb. Rev. Stat. 30-3408: Power of attorney for health care; form (Nebraska Legislature)
• Neb. Rev. Stat. 20-404: Declaration relating to use of life-sustaining treatment (Nebraska Legislature)
• Neb. Rev. Stat. 30-604: Surrogate; designation; priorities (Nebraska Legislature)
• Neb. Rev. Stat. 30-605: Persons disqualified to serve as surrogate (Nebraska Legislature)
• Neb. Rev. Stat. 30-606: Incapability; determination; documentation (Nebraska Legislature)