Finance
Instrument: Durable Power of Attorney (DPOA)
What is it for?
The “durable power of attorney” (DPOA) allows an adult (the “principal”) to appoint an “attorney in fact” to make decisions about the principal’s property on the principal’s behalf. The DPOA may not be used for other kinds of decisions, such as health care decisions.
What does it do?
The agent has the authority to make decisions on the principal’s behalf with respect to the principal’s property. A DPOA may give the agent either this broad, “general” authority, or “limited” authority that is specific to only certain kinds of decisions or portions of the principal’s property. Certain types of decisions, such as making gifts, require an express grant of authority in the DPOA. Mont. Code Ann. § 72-31-336.
A DPOA is presumed to be durable, that is, to remain valid despite the principal’s incapacity, unless it expressly provides that it is terminated by the incapacity of the principal. Neb. Rev. Stat. Ann. § 30-4004.
An agent must act in good faith, in accordance with the principal’s reasonable expectations as known to the agent, and within the scope of the DPOA. The agent has a duty to act loyally for the principal’s benefit, to avoid conflicts of interest, to act with care, competence, and diligence, and to coordinate with any agent appointed to make health care decisions for the principal. Neb. Rev. Stat. Ann. § 30-4014.
Third parties generally must accept acts by an agent as if they had been done by a principal unless they know that the agent’s authority has ended or the DPOA is invalid. Third parties may also request a certification from the agent that the agent’s authority remains in effect. Neb. Rev. Stat. Ann. § 30-4020.
How does one make it?
A DPOA must be signed or by the principal or by another individual at the principal’s direction and in the principal’s conscious presence, and notarized. Neb. Rev. Stat. Ann. § 30-4005.
When does it come into effect?
The agent’s authority becomes effective when the DPOA is executed, unless the DPOA provides for it to become effective at a future date or upon the occurrence of a future event. The principal may authorize one or more persons to determine in writing or other record that the specified event has occurred. Neb. Rev. Stat. Ann. § 30-4009(1). If the DPOA takes effect upon the principal’s incapacity, as determined by either a licensed physician or psychologist, or a court or appropriate government official. Neb. Rev. Stat. Ann. § 30-4009(3).
“Incapacity” is defined as the principal’s inability to manage property or business affairs due to an impairment in the principal’s ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Neb. Rev. Stat. Ann. § 30-4002(6).
How long does it last?
A DPOA terminates when the principal or agent dies, the principal or agent becomes incapacitated, the principal revokes the power of attorney, the purpose of the power of attorney is accomplished or terminates, or the agent resigns. Neb. Rev. Stat. Ann. § 30-4010(1).
How does one end it?
Presumably, a principal may revoke a DPOA by destroying it. For a revocation to be effective, the principal must also notify the agent of the revocation. Neb. Rev. Stat. Ann. § 30-4010(4). A subsequent DPOA does not automatically revoke a previously executed OA unless the subsequent DPOA specifically states so. Neb. Rev. Stat. Ann. § 30-4010(6).
What does an example look like?
There is a statutory DPOA form at Neb. Rev. Stat. Ann. § 30-4041.
What else should one know?
Nebraska’s DPOA is based on the Uniform Power of Attorney Act.
Last updated May 2022
Education
No information available at this time.
Health
Instrument: Power of Attorney for Health Care (POAHC)
What is it for?
The “power of attorney for health care” (POAHC) allows an individual (the “principal”) to designate another competent adult, to serve as their representative (the “attorney in fact”) to make health care decisions on the principal’s behalf. All adults are presumed to be competent unless a court either has found them to be incompetent or appointed a guardian before the adult executed the POAHC. Neb. Rev. Stat. Ann. § 30-3403.
What does it do?
An attorney in fact may make health care decisions on behalf of the principal, subject to some limitations. For example, the attorney in fact may not consent to any kind of health care that the principal would be allowed to consent to, make certain medical decisions that endanger fetuses, or withhold or withdraw life-sustaining procedures, except under limited circumstances. Neb. Rev. Stat. Ann. § 30-3417(1).
In making health care decisions for the principal, an attorney in fact must consult with medical personnel and also follow the principal’s known wishes. Where the principal’s wishes are unknown, then the attorney in fact must make decisions consistent with the principal’s “best interests.” Neb. Rev. Stat. Ann. § 30-3418(1).
How does one make it?
The POAHC must be in writing, identify both the principal and attorney in fact, specifically authorize the attorney in fact to make health care decisions in the event of the principal’s incapacity, and either be witnessed by two adult witnesses or be notarized. Neb. Rev. Stat. Ann. § 30-3404.
When does it come into effect?
The attorney in fact’s authority starts when a principal is determined to be incapable of making health care decisions. This determination must be made in writing by a physician. The physician must be consulted specifically for the purpose of determining incapacity and the cause and nature of the principal’s incapacity must be documented. Neb. Rev. Stat. Ann. § 30-3411. The physician must also have primary responsibility for the care and treatment of the principal. Neb. Rev. Stat. Ann. § 30-3402(2). Notice of the determination must be provided to the principal, to the attorney in fact, and to the primary health care provider of the principal. Neb. Rev. Stat. Ann. § 30-3413.
How long does it last?
A POAHC remains shall continue in effect until the principal dies or revokes it. Neb. Rev. Stat. Ann. § 30-3410.
How does one end it?
Either the POAHC instrument or a specific health care decision made by an attorney in fact may be revoked at any time by a principal who is competent and in any manner by which the principal is able to communicate his or her intent to revoke. Neb. Rev. Stat. Ann. § 30-3420(1).
The POAHC may also be revoked if there is language in the power of attorney document which triggers revocation. Neb. Rev. Stat. Ann. § 30-3420(1).
What does an example look like?
Nebraska provides a sample POAHC form at Neb. Rev. Stat. Ann. § 30-3408.
What else should one know?
A determination that a principal is incapable of making health care decisions shall not be construed as a finding that the principal is incapable for any other purpose. Neb. Rev. Stat. Ann. § 30-3416.
Last updated May 2022
General
No information available at this time.