Nebraska Durable Power of Attorney
A Nebraska durable power of attorney must be signed and notarized under Neb. Rev. Stat. 30-4005, and is durable by default under Neb. Rev. Stat. 30-4004.
Introduction
A durable power of attorney is a legal document that lets you name someone you trust to manage your money, property, and business matters if you cannot handle them yourself. In Nebraska that person is called your agent, or attorney-in-fact. The word durable is the key: a durable power of attorney keeps working even if you later become incapacitated and can no longer make decisions, which is usually the whole reason people create one. Nebraska governs financial powers of attorney under the Nebraska Uniform Power of Attorney Act, codified at Neb. Rev. Stat. 30-4001 to 30-4045, effective January 1, 2013. To be valid under Neb. Rev. Stat. 30-4005, the document must be signed by you (or marked, or signed in your conscious presence by an individual you direct) and is not valid unless it is acknowledged before a notary public or other individual authorized by law to take acknowledgments. Notarization is required; the statute does not require witnesses. Nebraska also makes a power of attorney durable by default: under Neb. Rev. Stat. 30-4004, a power of attorney created after January 1, 2013, is durable unless it expressly provides that it terminates on the principal's incapacity, so no special durability language is needed. Nebraska publishes an optional statutory form power of attorney at Neb. Rev. Stat. 30-4041. This guide covers the financial and general durable power of attorney only. A health-care power of attorney is a separate Nebraska instrument with its own rules. Attorney review is available as an option before you sign.
Key Things to Know
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A durable power of attorney lets someone act for you. It names an agent, also called your attorney-in-fact, to handle your money, property, and business matters. Durable means the document keeps working even if you later become incapacitated, which is usually why people set one up.
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It is durable by default. Nebraska makes a power of attorney durable automatically. Under Neb. Rev. Stat. 30-4004, a power of attorney created after January 1, 2013, under the Nebraska Uniform Power of Attorney Act is durable unless it expressly provides that it terminates on your incapacity, so you do not need to add special durability language.
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It must be notarized to be valid. Under Neb. Rev. Stat. 30-4005, you must sign the power of attorney (or mark it, or have it signed in your conscious presence by an individual you direct), and it is not valid unless it is acknowledged before a notary public or other individual authorized by law to take acknowledgments.
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No witnesses are required. Unlike some states, Nebraska does not require witness signatures. Neb. Rev. Stat. 30-4005 makes the notarial acknowledgment the validity step; witnesses are not part of the statutory requirement.
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It is effective when signed, unless you make it springing. Under Neb. Rev. Stat. 30-4009, a power of attorney is effective when executed unless you provide that it becomes effective at a future date or on a future event, such as your incapacity, in which case a licensed physician or licensed psychologist typically confirms the triggering event.
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Some powers need express language. Under Neb. Rev. Stat. 30-4024 an agent may create or revoke a trust, make a gift, change rights of survivorship or beneficiary designations, delegate authority, or disclaim property only if the document expressly grants that authority.
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Real-property use can be recorded. Recording is not required for validity, but under Neb. Rev. Stat. 76-204 an instrument granting a power to convey land may be recorded with the register of deeds in the county where the property sits to support the agent's authority on the land records.
Key decisions before you file
Before you file a Durable Power of Attorney in Nebraska, a few decisions shape the document: which option to choose and what each one means. The Durable Power of Attorney guide walks through them.
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Nebraska Requirements for Durable Power of Attorney
Under Neb. Rev. Stat. 30-4005, you must sign the power of attorney (or mark it, or have it signed in your conscious presence by an individual you direct), and it is not valid unless you acknowledge your signature before a notary public or other individual authorized by law to take acknowledgments.
Nebraska does not require witness signatures. Neb. Rev. Stat. 30-4005 makes the notarial acknowledgment the validity step, so a properly notarized power of attorney is valid without any witnesses.
Nebraska makes a power of attorney durable automatically. Under Neb. Rev. Stat. 30-4004, a power of attorney created after January 1, 2013, under the Nebraska Uniform Power of Attorney Act is durable unless it expressly provides that it terminates on your incapacity, so no special durability language is needed.
Under Neb. Rev. Stat. 30-4009, a power of attorney is effective when executed unless you provide that it becomes effective at a future date or on a future event. If effectiveness is triggered by your incapacity, it becomes effective on a written determination by a licensed physician or licensed psychologist, or a court or appropriate governmental official, unless you authorize another person to make that determination.
You may use Nebraska's optional statutory form power of attorney at Neb. Rev. Stat. 30-4041. A document substantially in that form has the meaning and effect prescribed by the Nebraska Uniform Power of Attorney Act. It is a financial and property form and does not authorize health-care decisions.
Recording is not required for validity. Under Neb. Rev. Stat. 76-204, an instrument containing a power to convey land as agent, when proved or acknowledged as the statute prescribes, may be recorded in the office of the register of deeds in any county where the real estate is situated to support the agent's authority on the land records.
Certain high-risk powers, sometimes called hot powers, are allowed only if your document specifically grants them. Under Neb. Rev. Stat. 30-4024, your agent may create or revoke a trust, make a gift, change rights of survivorship or beneficiary designations, delegate authority, or renounce or disclaim property only when the document expressly says so.
Under Neb. Rev. Stat. 30-4010, a power of attorney terminates when you revoke it, and an agent's authority terminates when you revoke that authority. Executing a new power of attorney does not revoke a prior one unless the new document says the previous power of attorney is revoked. If the document was recorded for real estate, record the revocation too so it gives notice.
Frequently Asked Questions
A durable power of attorney is a legal document that lets you name an agent, also called an attorney-in-fact, to manage your financial and property matters. It is called durable because it keeps working even if you later become incapacitated. Under Neb. Rev. Stat. 30-4004, a Nebraska power of attorney created after January 1, 2013, is durable by default, so the agent's authority survives your incapacity unless the document expressly says it terminates then.
The difference is what happens if you become incapacitated. A durable power of attorney continues to work after you lose capacity; a nondurable one ends at that moment. Under Neb. Rev. Stat. 30-4004, Nebraska treats a power of attorney created after January 1, 2013, as durable by default, so it survives your incapacity unless the document expressly provides that it terminates on incapacity. To make a Nebraska power of attorney nondurable, you must add express language ending it on incapacity.
Yes. Under Neb. Rev. Stat. 30-4004, a power of attorney created after January 1, 2013, under the Nebraska Uniform Power of Attorney Act is durable unless it expressly provides that it terminates on the principal's incapacity. No special durability language is needed for the agent's authority to survive your incapacity.
Yes. Under Neb. Rev. Stat. 30-4005, a power of attorney under the Nebraska Uniform Power of Attorney Act is not valid unless it is acknowledged before a notary public or other individual authorized by law to take acknowledgments. Notarization is the validity step that makes the document effective.
None are required by statute. Neb. Rev. Stat. 30-4005 requires you to sign the power of attorney and to acknowledge your signature before a notary public, but it does not require any witnesses. The notarial acknowledgment, not witness signatures, is what makes the document valid.
Under Neb. Rev. Stat. 30-4010, a power of attorney terminates when the principal revokes it, and an agent's authority terminates when the principal revokes that authority. Note that executing a new power of attorney does not revoke a prior one unless the new document says that the previous power of attorney, or all other powers of attorney, are revoked. If the power of attorney was recorded for real estate, record the revocation too so it gives notice.
A springing power of attorney takes effect only on a future event rather than at signing. Under Neb. Rev. Stat. 30-4009, a power of attorney is effective when executed unless the principal provides that it becomes effective at a future date or on a future event or contingency. If effectiveness is triggered by the principal's incapacity, it becomes effective on a written determination by a licensed physician or licensed psychologist, or a court or appropriate governmental official, that the principal is incapacitated, unless the principal authorizes another person to make that determination.
Under Neb. Rev. Stat. 30-4024, an agent may take certain acts only if the power of attorney expressly grants the authority. These include creating, amending, revoking, or terminating an inter vivos trust; making a gift; creating or changing rights of survivorship; creating or changing a beneficiary designation; delegating authority; waiving the principal's right to be a beneficiary of a joint and survivor annuity; exercising delegable fiduciary powers; and renouncing or disclaiming property. Without express language, the agent cannot do these things.