Power of Attorney and Health Care – General – Nebraska
A durable power of attorney is a power of attorney by which a principal designates another his or her attorney. That designation must be in writing and must contain the words: “This power of attorney shall not be affected by subsequent disability or incapacity of the principal.” or “This power of attorney shall become effective upon the disability or incapacity of the principal.” or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or incapacity.
All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his or her successors in interest as if the principal were competent and not disabled.
If a court appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the principal’s property or all of his or her property except specified exclusions, the attorney in fact shall be accountable to the fiduciary as well as to the principal.
The fiduciary shall have the same power to revoke or amend the power of attorney that the principal would have had if he or she were not disabled or incapacitated.
In his or her power of attorney, a principal may nominate the conservator, guardian of the estate, or guardian of the person for consideration by the court if protective proceedings for the principal’s person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal’s most recent nomination in a durable power of attorney except for good cause or disqualification.
A principal in a power of attorney or a durable power of attorney may waive the requirement that the conservator, guardian of the estate, or guardian of the person be required to post a bond.
The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other person unless the attorney in fact has actual knowledge of the death of the principal and acts in good faith. Action taken by an attorney in fact under these circumstances, unless otherwise invalid or unenforceable, binds successors in interest of the principal.
The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power of attorney does not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his or her successors in interest.
An affidavit executed by the attorney in fact under a power of attorney, durable or otherwise, stating that he or she did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation or of the principal’s death, disability, or incapacity is conclusive proof of the non-revocation or non-termination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable. This provision does not apply if there is a provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal’s capacity.
The validity and enforceability of a power of attorney executed prior to September 6, 1985, is governed by the law in effect on the date of execution of that power of attorney.
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