Nebraska Living Will Requirements

Introduction

Key Things to Know

1. 1

   Nebraska's statute never uses the term living will. It calls this document a declaration, your written statement of which medical treatments you want or want withheld if you cannot speak for yourself, and it names no agent to decide for you.

2. 2

   A living will is not a last will and testament. A living will governs medical care while you are alive but unable to communicate; a last will and testament governs who inherits your property after you die. Most people preparing one eventually want the other too.

3. 3

   Nebraska's declaration has a much shorter witness-disqualification list than Nebraska's own health care power of attorney: relatives, romantic partners, and health care staff may witness this declaration (only one witness may work for your treating provider, and none may work for your life or health insurer). Signing this declaration does not create a health care power of attorney; that is a separate document under a separate statute.

4. 4

   Nebraska's statutory declaration form only lets you decline life-sustaining treatment. It has no statutory checkbox for requesting maximum treatment instead. If you want your wishes to lean toward continued treatment, you need to write that in yourself.

5. 5

   You can sign your declaration before a notary public, or before two qualified adult witnesses. Both routes are equally valid.

6. 6

   Artificial nutrition and hydration is included automatically in your general life-sustaining-treatment instruction. Nebraska's statute does not require you to initial it as a separate, stand-alone choice, and comfort-care nutrition and hydration must always be provided regardless.

7. 7

   Nebraska law will not let your declaration withhold or withdraw life-sustaining treatment while you are known to be pregnant, so long as it is probable the fetus would develop to live birth with continued treatment.

8. 8

   You can revoke your declaration at any time, in any manner, regardless of your mental or physical condition. Revocation takes effect once you or a witness communicates it to your attending physician or health care provider.

9. 9

   Nebraska has no state-run advance directive registry. Keep copies with your physician, your hospital, and your family so your declaration can be found when it is needed.

Nebraska Requirements for Living Will

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

  This act creates Nebraska's health care power of attorney, an entirely separate document from the living will (declaration), which is governed instead by the Rights of the Terminally Ill Act (Section 20-401 to 20-416).

• Rights of the Terminally Ill Act (Neb. Rev. Stat. Sections 20-401 to 20-416)

  This act is the statutory authority for Nebraska's living will, legally called a declaration. It creates the declaration, the document letting a person direct the withholding or withdrawal of life-sustaining treatment if in a terminal condition or persistent vegetative state, as its own separate instrument with no agent-designation component.

• Declaration Requirements (Neb. Rev. Stat. Section 20-404)

  The declaration must be signed by the declarant, or by another person at the declarant's direction, and either witnessed by two adults or acknowledged before a notary public, two independently sufficient routes. No more than one witness may be an administrator or employee of a health care provider caring for the declarant, and no witness may be an employee of the declarant's life or health insurance provider. Nebraska does not disqualify relatives from witnessing, unlike some other states.

• Revocation Provisions (Neb. Rev. Stat. Section 20-406)

  A declarant may revoke a declaration at any time and in any manner, regardless of mental or physical condition. Revocation is effective once communicated to the attending physician or health care provider, by the declarant or by a witness to the revocation, who must then make it part of the medical record.

• Pregnancy Limitations (Neb. Rev. Stat. Section 20-408)

  Life-sustaining treatment cannot be withheld or withdrawn under a declaration from a person known by the attending physician to be pregnant, so long as it is probable the fetus will develop to the point of live birth with continued treatment.

• Immunity for Healthcare Providers (Neb. Rev. Stat. Section 20-410)

  A physician or other health care provider who gives effect to a declaration in good faith, without knowledge of a revocation, or whose actions under the Act are in accord with reasonable medical standards, is not subject to civil or criminal liability or professional discipline for that action.

• Prohibition Against Suicide Interpretation (Neb. Rev. Stat. Section 20-412)

  Death resulting from the withholding or withdrawal of life-sustaining treatment in accordance with a declaration does not constitute suicide or homicide for any purpose, and the Act does not condone, authorize, or approve homicide, suicide, or assisted suicide.

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

  Federal law requires Medicare- and Medicaid-participating hospitals, nursing homes, and other facilities to inform patients in writing of their right under Nebraska law to make a declaration stating their own treatment wishes.

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

  Federal HIPAA regulations govern how a designated decision-maker can be authorized to access a patient's protected health information. Because Nebraska's declaration names no agent, this authorization is relevant to the separate health care power of attorney document, not to the declaration's own treatment-wishes instructions.

• Anatomical Gift Authorization (Neb. Rev. Stat. Sections 71-4824 to 71-4845)

  Nebraska's Revised Uniform Anatomical Gift Act lets a declarant authorize organ and tissue donation.

• Mental Health Treatment Preferences (Neb. Rev. Stat. Sections 30-4401 to 30-4415)

  The Advance Mental Health Care Directives Act lets a person state preferences about psychiatric medication, electroconvulsive therapy, and psychiatric hospitalization. It is a THIRD, separate advance-directive instrument from both the living-will declaration and the health care power of attorney, not a section within the declaration itself.

• Out-of-State Recognition (Neb. Rev. Stat. Section 20-414)

  A declaration executed in another state, in compliance with that state's law or with Nebraska's law, is valid for purposes of the Rights of the Terminally Ill Act.

• Surrogate Decision-Making Hierarchy (Neb. Rev. Stat. Sections 30-601 to 30-619)

  The Health Care Surrogacy Act establishes a hierarchy of decision-makers who may consent to health care on a patient's behalf when the patient lacks capacity and has neither a declaration addressing the situation nor a designated health care agent.

• Transfer of Care for Unwilling Providers (Neb. Rev. Stat. Section 20-409)

  An attending physician or other health care provider unwilling to comply with a declaration, for any reason, must take reasonable steps to promptly transfer the declarant's care to a provider who is willing to comply.

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

  Federal regulations require Medicare- and Medicaid-participating providers to comply with advance-directive requirements, including informing patients of their right under state law to accept or refuse medical treatment and to execute a declaration.

• Guardianship Provisions (Neb. Rev. Stat. Sections 30-2601 to 30-2661)

  Addresses the relationship between a declaration and a subsequent guardianship proceeding; a guardian must comply with the ward's existing declaration.

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

  Nebraska's Uniform Electronic Transactions Act applies generally to electronic records and signatures. The Rights of the Terminally Ill Act itself contains no declaration-specific electronic-signature rule of its own, unlike some states.

• One-Directional Declaration Form, No Statutory Election to Prolong Treatment (Neb. Rev. Stat. Section 20-404)

  Nebraska's optional statutory declaration form only lets a person decline life-sustaining treatment under the two named conditions (terminal condition, persistent vegetative state). Unlike states whose optional forms offer a binary choice between prolonging life and not prolonging life, Nebraska's form has no built-in statutory line for affirmatively requesting maximum treatment. A person who wants that stated must add it in their own words.