Nebraska Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   Nebraska's Power of Attorney for Health Care disqualifies not only close relatives but also romantic or dating partners and mental health treatment team members from witnessing the document, a modern addition to the traditional conflict-of-interest list; the document itself lets you (the principal) name a trusted adult (the attorney in fact) to make health care decisions for you if you become unable to make them yourself.

2. 2

   Your attorney in fact's authority does not start the moment you sign. It begins only after your attending physician determines in writing that you are incapable of making your own decisions, and you can require that a second physician confirm any future determination (Neb. Rev. Stat. Section 30-3412).

3. 3

   Unless you limit it in the document, your attorney in fact can make any and all health care decisions for you, guided by your wishes or, if unknown, your best interests and religious and moral beliefs.

4. 4

   Your attorney in fact cannot be your attending physician, a member of your mental health treatment team, an unrelated employee of either, or an unrelated owner, operator, or employee of a facility where you are a patient or resident (Neb. Rev. Stat. Section 30-3406).

5. 5

   You need two adult witnesses who both clear Nebraska's disqualification list (no spouse, parent, child, sibling, presumptive heir, attending physician, mental health treatment team member, or romantic partner), or you can sign before a notary instead. You do not need both.

6. 6

   You can revoke the document at any time while you are competent, in any manner that communicates your intent, simply by telling your attorney in fact, your physician, or a health care provider.

7. 7

   If you name your spouse as attorney in fact and later divorce, their authority ends automatically unless your document or the divorce decree states otherwise.

8. 8

   Nebraska has no central state registry for Powers of Attorney for Health Care. Keep the signed original and give copies to your physician, your attorney in fact, and any successor attorney in fact.

9. 9

   This is a different document from Nebraska's Durable Power of Attorney under the Nebraska Uniform Power of Attorney Act, which covers property and financial decisions, not health care.

Nebraska Requirements for Healthcare Power of Attorney

• Power of Attorney for Health Care Authority (Neb. Rev. Stat. Sections 30-3401 to 30-3432)

  Establishes the legal framework letting a competent adult designate an attorney in fact to make health care decisions if the adult later becomes incapable (Section 30-3401).

• Pregnancy Limitation on Attorney in Fact Authority (Neb. Rev. Stat. Section 30-3417)

  Under Neb. Rev. Stat. Section 30-3417, an attorney in fact has no authority to make a health care decision that would result in the death of the principal's unborn child if it is probable the child would develop to live birth with continued care.

• Immunity for Health Care Providers and Attorneys in Fact (Neb. Rev. Stat. Section 30-3423)

  The Power of Attorney for Health Care has its own immunity provision protecting an attorney in fact who acts in good faith, and protecting a physician or health care provider who relies in good faith on a person's apparent status as attorney in fact, from criminal, civil, or professional-discipline liability.

• Prohibition Against Suicide or Homicide Interpretation (Neb. Rev. Stat. Section 30-3401(3))

  The Act states that it confers no new right regarding any specific medical treatment, does not alter existing homicide or suicide law, and does not condone, authorize, or approve homicide, suicide, or assisted suicide (Neb. Rev. Stat. Section 30-3401(3)).

• Patient Self-Determination Act (42 U.S.C. Section 1395cc(f))

  Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Power of Attorney for Health Care.

• HIPAA Authorization (45 C.F.R. Section 164.508)

  Federal HIPAA regulations govern how the attorney in fact can be authorized to access the principal's protected health information once this document is in effect.

• Anatomical Gift Authorization (Neb. Rev. Stat. Sections 71-4824 to 71-4843)

  The Revised Uniform Anatomical Gift Act is codified at Sections 71-4824 to 71-4843. Under Section 71-4827, an agent of the donor, which includes an attorney in fact under a power of attorney for health care, may make an anatomical gift on the principal's behalf during the principal's life, unless the power of attorney for health care or another record prohibits it.

• Advance Mental Health Care Directives Act Integration (Neb. Rev. Stat. Sections 30-4401 to 30-4415)

  The Advance Mental Health Care Directives Act is a separate, distinctly executed instrument covering psychotropic medication, short-term facility admission, and electroconvulsive therapy preferences, with its own witness or notary and revocation rules. It is not automatically part of the Power of Attorney for Health Care. Current law (Neb. Rev. Stat. Section 30-3408(5)) allows a Power of Attorney for Health Care to include an advance mental health care directive, and the Power of Attorney for Health Care's own definitions (Section 30-3402) now expressly include mental health care within health care and cross-reference this Act.

• Artificial Nutrition and Hydration Limits on Attorney in Fact Authority (Neb. Rev. Stat. Section 30-3418)

  Neb. Rev. Stat. Section 30-3418 provides that: the attorney in fact has no authority to withhold or withdraw a life-sustaining procedure or artificially administered nutrition or hydration unless the principal is in a terminal condition or persistent vegetative state, and either the document explicitly grants that authority or the principal's intent is shown by clear and convincing evidence. In any case, the attorney in fact has no authority to withhold routine comfort care or the usual provision of nutrition and hydration.

• Out-of-State Recognition (Neb. Rev. Stat. Section 30-3408(4))

  Under Neb. Rev. Stat. Section 30-3408(4), a power of attorney for health care validly executed in another state is considered valid in Nebraska.

• Health Care Surrogacy Act Fallback (Neb. Rev. Stat. Sections 30-601 to 30-619)

  The Health Care Surrogacy Act establishes a hierarchy of default surrogate decision-makers, such as a spouse, adult child, parent, or adult sibling, for a patient who has not executed a valid Power of Attorney for Health Care.

• Religious or Moral Objection by Health Care Provider (Neb. Rev. Stat. Section 30-3428)

  Neb. Rev. Stat. Section 30-3428 provides that: a health care provider organization or an individual provider is not obligated to honor a decision by the attorney in fact that conflicts with the provider's formally adopted religious, ethical, or moral policy, but must promptly inform the attorney in fact and assist in transferring the principal to a provider willing to honor the decision.

• Medicare/Medicaid Compliance (42 C.F.R. Section 489.102)

  Medicare and Medicaid regulations require participating facilities to honor a patient's rights regarding advance directives, including the right to accept or refuse medical treatment.

• Guardianship and Conservatorship Interaction (Neb. Rev. Stat. Sections 30-2601 to 30-2661 and Section 30-3420(5))

  A valid Power of Attorney for Health Care supersedes guardianship and conservatorship proceedings regarding health care decisions, unless the document states otherwise (Section 30-3420(5)). Nebraska case law confirms this is not absolute: a court may still revoke or set aside a Power of Attorney for Health Care in favor of a guardianship when the ward's best interests support it (In re Guardianship and Conservatorship of Mueller, 23 Neb. App. 430 (2015)).

• Electronic Signatures Validity (Neb. Rev. Stat. Sections 86-612 to 86-643)

  Nebraska's Uniform Electronic Transactions Act generally allows electronic signatures for legal documents, but the Health Care Power of Attorney Act itself contains no declaration-specific electronic-signature rule of its own.