Living will requirements in Nebraska

Which document is this, really

Nebraska’s living will has a name most people never hear until they need it: the Declaration, made under the Rights of the Terminally Ill Act. It is a written statement of the life-sustaining treatment you want, or do not want, if a physician ever determines you are in a terminal condition or a persistent vegetative state and cannot decide for yourself. Nebraska keeps the document that names someone to decide on your behalf in an entirely separate statute, the Health Care Power of Attorney Act, which creates the Power of Attorney for Health Care. The person you name in it is your attorney in fact, Nebraska’s own term, written as three words rather than hyphenated.

The two are not one form pretending to be two. Nebraska prints a sample Declaration with no place to name an agent, and a separate sample Power of Attorney for Health Care that never mentions a terminal condition, though it does leave optional lines where you can write instructions on life-sustaining treatment and on artificially administered nutrition and hydration. Using either model form is optional: the Declaration “may, but need not,” follow the printed text, and the Power of Attorney for Health Care only has to meet the law’s required content, not repeat the sample word for word. What the two documents do share, despite sitting in different chapters of the Nebraska statutes, is a signing rule, covered next.

This is exactly the pairing Myend’s Healthcare Directive prepares for Nebraska: a Declaration for your treatment wishes, and a Power of Attorney for Health Care for your attorney in fact, each ready for its own signing.

Who can make a Nebraska advance directive

Nebraska sets two different ages, one for each document. To sign the Declaration you must be an “adult” as the Rights of the Terminally Ill Act defines it: nineteen years of age or older, or a person who is or has been married. Nineteen is Nebraska’s general age of majority, one year past the number most states use, and the Act does not lower it for anyone except through marriage.

The Power of Attorney for Health Care uses a different, more familiar line. Its own act defines “adult” as eighteen years of age or older, or a person who is not a minor. Beyond the age line, neither act asks for a medical determination of capacity before you sign; you are presumed able to make the document until a physician later says otherwise, covered in “When it takes effect.”

Signing it so it counts

Nebraska gives you the identical choice on both documents: two adult witnesses, or a notary public in place of both. Because the Declaration and the Power of Attorney for Health Care come from separate acts, though, each has its own list of who cannot witness, and the two lists are not the same size.

The Declaration

1. 1You sign

   You sign the Declaration yourself, or direct someone else to sign it for you, in your presence.

2. 2Two witnesses, or a notary

   Two adults watch you sign, or a notary public takes your acknowledgment instead. Either one makes the Declaration valid on its own.

3. 3If you use witnesses

   No more than one of your two witnesses may be an administrator or employee of a health care provider who is caring for or treating you, and neither witness may be an employee of a life or health insurance provider that covers you. Choosing a notary instead removes both restrictions.

The Power of Attorney for Health Care

Naming your attorney in fact is a separate signing, on its own paper, with the same either/or choice, and one extra step. Each witness has to sign a written declaration in substantially the form the statute prints: that they know you personally, that you signed or acknowledged your signature in front of them, that you appeared of sound mind and free from duress or undue influence, and that neither they nor your attending physician is the attorney in fact. Watching you acknowledge a signature you made earlier counts as witnessing it. The Health Care Power of Attorney Act also bars a much longer list of people from witnessing: your spouse, parent, child, grandchild, sibling, presumptive heir, or known devisee cannot witness, and neither can your attending physician, a member of your mental health treatment team, a romantic or dating partner, or the attorney in fact you are naming. As with the Declaration, no more than one witness may be an administrator or employee of a health care provider who is caring for or treating you, and no witness may be an employee of a life or health insurance provider that covers you. If a notary takes your acknowledgment instead, none of those restrictions apply, though the notary itself cannot be the attorney in fact or a successor attorney in fact you named.

Neither act says anything about signing remotely or electronically, so the careful reading is paper, signed in person, with your witnesses actually present or your notary completing the acknowledgment face to face.

Naming your attorney in fact

The Power of Attorney for Health Care is where you name your attorney in fact, the person who makes health care decisions for you once the document takes effect. Section 30-3406 disqualifies four groups from serving: your attending physician or a member of your mental health treatment team; an employee of either, unless that employee is related to you by blood, marriage, or adoption; the owner, operator, or an employee of a health care provider where you are a patient or resident, unless related to you the same way; and a person unrelated to you who is already serving as attorney in fact for ten or more other principals.

Nebraska then holds the role back from the decision most people name an agent to make. Your attorney in fact cannot consent to withholding or withdrawing a life-sustaining procedure, or artificially administered nutrition or hydration, unless two things are true at once: you are terminal or in a persistent vegetative state, and either your Power of Attorney for Health Care explicitly grants that authority or clear and convincing evidence establishes that you meant it to. They can never withhold routine comfort care or food and fluids given in the usual way.

One protection stays with you throughout. Even after a physician has determined you are incapable of deciding, your objection to that determination, or to a decision your attorney in fact has made, prevails unless a county court has found you incapable.

The Declaration has no designee role at all. It carries only your own treatment wishes; naming someone to decide for you happens exclusively through the Power of Attorney for Health Care.

When it takes effect

The two documents switch on differently, and one asks for more than a diagnosis. Your Declaration becomes operative only once four things are all true: it has been communicated to your attending physician; that physician has determined you are in a terminal condition or a persistent vegetative state; the same physician has determined you can no longer make your own decisions about life-sustaining treatment; and the physician has notified a reasonably available member of your immediate family, or your guardian, of both the diagnosis and the intent to act on your Declaration. That fourth step, notifying a family member or guardian before your Declaration is followed, is unusual.

Your Power of Attorney for Health Care runs on a simpler trigger. Your attorney in fact’s authority begins once your attending physician, together with any other physician consulted on the question, states in writing that you are incapable of making your own health care decisions, and records the cause and nature of that incapacity in your medical record. Nothing there calls for notifying your family first, and a physician you named as your attorney in fact may not make that determination.

If you are pregnant

Both of Nebraska’s documents carry a pregnancy rule, and both turn on the same question: whether a live birth is still probable. Life-sustaining treatment cannot be withheld or withdrawn under your Declaration if your attending physician knows you are pregnant, for as long as it is probable that the pregnancy will reach live birth with that treatment continued. The Health Care Power of Attorney Act holds your attorney in fact to the same line: while your pregnancy is known and live birth remains probable, they cannot make a decision that would result in the death of the unborn child.

Neither section names a week count or a trimester. The test is whether live birth is still probable with continued treatment, a medical judgment made at the time rather than a date you can calculate in advance. The exact wording of both is in the sources list below.

Changing or cancelling it

You can revoke your Declaration at any time and in any manner, regardless of your mental or physical condition. The revocation takes effect once you, or a witness to the revocation, communicate it to your attending physician or another health care provider, who then has to put it in your medical record.

The Power of Attorney for Health Care is revocable at any time too, but only while you remain competent. Section 30-3420 lets a competent principal revoke it in any manner that communicates the intent, and the revocation takes effect once you communicate it to your attorney in fact, your attending physician, or another health care provider, each of whom has to promptly tell your attending physician. Once you lose competence, this route to revoke it closes.

Three more rules sit in the same section. Unless your document says otherwise, signing a valid new Power of Attorney for Health Care revokes any earlier one, so two people never end up holding the same authority. A divorce or legal separation decree may say whether your spouse stays on; if it is silent, that choice is treated as revoked when the decree is entered. And a revocation does not reach anyone who acts in good faith under the document without actual knowledge of it, which is why telling the person you named comes first. Writing down new wishes or new limits is not itself a revocation unless it says so.

Making sure it is found

Neither of Nebraska’s two acts creates a registry, so neither one gives you a place to file a Declaration or a Power of Attorney for Health Care. That makes copies your real safeguard: give one of each to your attorney in fact, your physician, and the hospital you are most likely to use, and tell your family plainly where the signed originals are kept.

Communicating the Declaration to your attending physician is also the legal trigger that makes it operative, so a copy sitting at home while you are treated somewhere else does not merely risk being missed. It delays the determination the statute requires.

This is not a POLST

A POLST-style medical order is a different kind of document from either your Declaration or your Power of Attorney for Health Care. Neither of Nebraska’s two acts names such a program, so this page puts no Nebraska name to one; ask the facility treating you what it uses. Where a program like this exists, a clinician signs it together with someone already seriously ill, and it becomes a set of standing medical orders that travels with that person between hospital, nursing facility, home, and ambulance. Your two documents are made in advance, for a future you cannot yet see. Myend prepares them both. It cannot produce a medical order, because that has to come from a treating clinician.

What is different about Nebraska

Nebraska asks you to be a year older for your Declaration than for your Power of Attorney for Health Care, then gives both documents the exact same signing choice anyway.

Most states set one adult age for the whole of an advance directive. Nebraska splits it, nineteen or married for the Declaration and eighteen for the Power of Attorney for Health Care, so an eighteen-year-old Nebraskan can name an attorney in fact a full year before they can put their own treatment wishes into a Declaration.

The two acts also disagree about who cannot witness. The Declaration disqualifies a narrow pair, no more than one health care employee and no life-or-health-insurance employee; the Power of Attorney for Health Care adds your close family, your presumptive heir or known devisee, your attending physician, a mental health treatment team member, a romantic or dating partner, and the attorney in fact themselves. Bring the wrong witness to the wrong document and it will not hold up.

And the Power of Attorney for Health Care caps how many people one unrelated attorney in fact can already be serving. Once someone is acting for ten or more principals, Nebraska will not let them take on an eleventh, unless they are related to you by blood, marriage, or adoption. Only one other state draws the same line: New York caps a health care agent at ten principals too, but its exception is narrower, reaching only a spouse, child, parent, sibling or grandparent.

Common questions

Sources and review