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Medical Power of Attorney in Nebraska: Health Care POA and Living Will
Nebraska's medical power of attorney needs two qualified adult witnesses or a notary, and close relatives can't be witnesses. Here is how it and the living will work, and who decides without either.
By naveen · Updated · How we research our guides
What to know
- A Nebraska power of attorney for health care must be in writing, dated, and either witnessed by two adults or acknowledged before a notary (Neb. Rev. Stat. 30-3404).
- Your parent's spouse, parent, child, grandchild, sibling, heirs, attending physician and the named agent can't be witnesses (30-3405).
- The agent's authority starts only when the attending physician determines in writing that your parent is incapable of making health care decisions.
- The living will, called a declaration under the Rights of the Terminally Ill Act, needs two adult witnesses or a notary (20-404); without any document, the Health Care Surrogacy Act sets a family priority list.
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A Nebraska medical power of attorney, called a power of attorney for health care, names an "attorney in fact" to make health care decisions when your parent can't; it needs two qualified adult witnesses or a notary. By statute it "authorizes a designated attorney in fact to make health care decisions for the principal when the principal is incapable." Under Neb. Rev. Stat. 30-3404, it must be "witnessed and signed by at least two adults," or "signed and acknowledged by the principal before a notary public who shall not be the attorney in fact or successor attorney in fact."
What is a power of attorney for health care in Nebraska?
It's a written document, under Neb. Rev. Stat. 30-3401 to 30-3432, in which your parent names an attorney in fact, and can name a successor, to make health care decisions if your parent becomes incapable. Once it's in effect, the attorney in fact "shall have priority over any person other than the principal to act for the principal in all health care decisions," and has the same right as your parent to see medical records.
The agent decides according to your parent's wishes, or if those aren't known, "in accordance with the principal's best interests, with due regard for the principal's religious and moral beliefs if known." It's separate from a financial power of attorney, whose statutory form excludes health care; see our Nebraska power of attorney guide.
How is it different from a living will?
A power of attorney for health care names a person to decide, while a living will, called a declaration, is your parent's own direction about life-sustaining treatment in a terminal condition or persistent vegetative state.
| Document | What it does | Signing rule |
|---|---|---|
| Power of attorney for health care | Names an attorney in fact for health care decisions when your parent is incapable | Two adult witnesses who aren't excluded, or a notary who isn't the agent (30-3404, 30-3405) |
| Declaration (living will) | Directs that life-sustaining treatment be withheld or withdrawn in a terminal condition or persistent vegetative state | Two adult witnesses or a notary (20-404) |
A power of attorney for health care can also be part of a financial durable power of attorney or another document, as long as the health care part fully meets the signing rules in 30-3404. For the general picture, see power of attorney vs. advance directive.
How do you sign a power of attorney for health care in Nebraska?
Your parent dates and signs it, and either two adults witness the signing (or your parent's acknowledgment of the signature), or your parent signs and acknowledges it before a notary. Each witness signs a written declaration in substantially the statutory form, saying your parent "appears to be of sound mind and not under duress or undue influence."
Under 30-3405, these people can't witness:
- your parent's spouse, parent, child, grandchild, sibling, presumptive heir or known devisee;
- your parent's attending physician or a mental health treatment team member;
- a romantic or dating partner;
- the attorney in fact;
- an employee of your parent's life or health insurance provider.
No more than one witness can be an administrator or employee of a health care provider caring for your parent. The notary option avoids this list: 30-3404 bars only the agent and successor agent from being the notary, though Nebraska's notary law separately disqualifies a notary who is your parent's spouse, ancestor, descendant or sibling (64-105.01).
Who can't serve as the attorney in fact?
Under 30-3406, the agent can't be your parent's attending physician or a member of their mental health treatment team. Unless related to your parent by blood, marriage or adoption, the agent also can't be an employee of the attending physician or treatment team, an owner, operator or employee of a health care provider where your parent is a patient or resident, or someone already serving as attorney in fact for ten or more people.
Divorce changes things. If your parent named their spouse, a decree of divorce or legal separation can say whether that choice stays in effect; if it doesn't say, "the choice of the principal's spouse as attorney in fact for health care shall be deemed revoked upon entry of the decree" (30-3420).
When does the attorney in fact start making decisions?
"The authority of the attorney in fact shall commence upon a determination pursuant to section 30-3412 that the principal is incapable of making health care decisions" (30-3411). The attending physician, and any physician consulted, makes that determination in writing and documents the cause and nature of the incapacity. A physician who is your parent's agent can't make it.
Several protections are built in:
- If your parent objects to the determination or to the agent's decision, "the principal's objection or decision shall prevail unless the principal is determined by a county court to be incapable of making health care decisions."
- The agent can consent to withholding or withdrawing life-sustaining procedures or artificial nutrition and hydration only if your parent has a terminal condition or is in a persistent vegetative state, and the document explicitly grants that authority or your parent's intent is shown by clear and convincing evidence (30-3418).
- A provider doesn't have to accept the agent's decisions until it has "a signed original or a photostatic copy of a signed original power of attorney for health care."
Where do you get a Nebraska form?
The statute prints one. A power of attorney for health care "shall be in a form which complies with sections 30-3401 to 30-3432 and may be in the form provided in this subsection" (30-3408). The form lets your parent add instructions on life-sustaining treatment and on artificially administered nutrition and hydration, and to require that a second physician confirm any future incapacity.
The Nebraska Judicial Branch's self-help page offers a fill-in version, form DC 6:13, with instructions that say it "must be signed in the presence of TWO witnesses OR a notary to be valid." That form's witness declaration doesn't list the people the statute excludes, so check each witness against the list above.
How do you sign a Nebraska living will?
Your parent signs it, or has another person sign at their direction, in front of two adult witnesses or a notary. Under Neb. Rev. Stat. 20-404, "An adult of sound mind may execute at any time a declaration governing the withholding or withdrawal of life-sustaining treatment." It "must be signed by the declarant or another person at the declarant's direction and witnessed by two adults or a notary public." For this act, an adult is 19 or older, or is or has been married.
The witness limits are narrower than for the health care power of attorney. No more than one witness can be an administrator or employee of a health care provider treating your parent, and no witness can be an employee of your parent's life or health insurer. Those limits don't apply to a notary. The statute prints an optional form titled "DECLARATION."
When does the living will apply?
Under 20-405, it becomes operative when it's communicated to the attending physician, the physician determines your parent is in a terminal condition or persistent vegetative state and can't make decisions about life-sustaining treatment, and the physician has notified a reasonably available immediate family member or guardian of the diagnosis and the intent to invoke it.
Comfort care continues. The act doesn't affect the duty to provide treatment, "including nutrition and hydration, for a patient's comfort care or alleviation of pain." A provider unwilling to follow it must take reasonable steps to transfer your parent's care.
What happens if your parent has no health care document?
A surrogate decides, under Nebraska's Health Care Surrogacy Act. Under Neb. Rev. Stat. 30-604, that applies once the primary health care provider determines your parent is incapable and there's no agent or guardian. Your parent can name one by personally informing the primary health care provider. Otherwise, in order of priority:
- the spouse, unless legally separated or a divorce, annulment or legal separation is pending;
- an adult child;
- a parent;
- an adult brother or sister.
A person "who has exhibited special care and concern" for your parent and is familiar with their values is also eligible. If members of the same class disagree, the provider seeks a consensus; if none is reached in time, they're treated as disqualified and the provider may turn to others. A surrogate can't consent to withdrawing life-sustaining procedures unless your parent explicitly granted that authority and their intent is shown by clear and convincing evidence, among other conditions.
How do you revoke a Nebraska advance directive?
Your parent revokes either document by communicating the intent to revoke, and the two statutes differ on capacity:
- Power of attorney for health care. While competent, your parent can revoke it "in any manner by which the principal is able to communicate his or her intent to revoke," effective once communicated to the attending physician, a provider or the agent (30-3420). Signing a new one revokes earlier ones unless it says otherwise.
- Living will. "A declarant may revoke a declaration at any time and in any manner without regard to the declarant's mental or physical condition," effective once communicated to the attending physician or another provider (20-406).
Frequently asked questions
Does a medical power of attorney need to be notarized in Nebraska?
Not necessarily. Under Neb. Rev. Stat. 30-3404, your parent can either sign before two adult witnesses or sign and acknowledge it before a notary who isn't the agent or successor agent. Close relatives, heirs and the attending physician can't be witnesses, so a notary is the alternative when qualified witnesses are hard to find.
Can a family member witness a medical power of attorney in Nebraska?
Mostly no. Under 30-3405, your parent's spouse, parent, child, grandchild, sibling, presumptive heir, known devisee, romantic or dating partner and the agent can't witness. The living will is different: its witness limits cover only health care provider staff, beyond one witness, and insurance company employees.
Where can I get a Nebraska health care power of attorney form?
The statute prints one in Neb. Rev. Stat. 30-3408, and the Nebraska Judicial Branch's self-help center offers a fill-in version, form DC 6:13, with instructions. The living will form is printed in 20-404. Neither form is mandatory, but any document must meet the signing rules, and copies should go to the agent and doctor.
Who makes medical decisions in Nebraska if there's no power of attorney?
A surrogate under the Health Care Surrogacy Act. Your parent can name one by telling the primary health care provider. Otherwise the order runs from the spouse, to an adult child, a parent, then an adult sibling, and someone who has shown special care and concern is also eligible. Family members who can't reach consensus may be disqualified.
Is an advance directive from another state valid in Nebraska?
Yes, if it was valid where it was signed. Under 30-3408, a health care power of attorney executed in another state and valid there "shall be valid according to its terms." Under 20-414, a living will executed in another state in compliance with that state's law, or Nebraska's, is valid. If your parent splits time between states, an attorney can confirm what covers both.
Can my parent change their mind after signing?
Yes. While competent, your parent can revoke a health care power of attorney in any way they can communicate, and their objection to an agent's decision prevails unless a county court finds them incapable. A living will can be revoked at any time and in any manner, regardless of your parent's condition.
Getting started
A medical power of attorney only helps if it's signed while your parent can sign it, with qualified witnesses or a notary, and if a copy reaches the doctor. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- Neb. Rev. Stat. 30-3401 to 30-3432, Power of attorney for health care: signing (30-3404), witnesses (30-3405), agents (30-3406), the form and out-of-state documents (30-3408), when authority begins (30-3411, 30-3412), the agent's limits (30-3417, 30-3418) and revocation (30-3420); published by the Nebraska Legislature.
- Rights of the Terminally Ill Act, Neb. Rev. Stat. 20-401 to 20-416: the declaration (20-404), when it applies (20-405), revocation (20-406) and out-of-state declarations (20-414).
- Health Care Surrogacy Act, Neb. Rev. Stat. 30-601 to 30-619: surrogates when there's no document (30-604).
- Nebraska Judicial Branch, Power of Attorney - Medical: form DC 6:13 and instructions.
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