Omaha ElderCare Resource Handbook:
Legal Issues
Advance Medical Directives
Advance Medical Directives are written guidelines directing future care in the case an individual cannot make or communicate a medical decision. The primary emphasis is usually on end of life care. The most common types of advance directives are Living Wills & Powers of Attorney but others have become more prominent in recent years. In Nebraska and Iowa, you must fill out a Living Will and a Healthcare Power of Attorney for a complete Advance Directive.
Living Will
A Living Will is a legal document that indicates the individual’s wishes regarding end of life decisions, i.e. CPR, ventilators and feeding tubes. They can be specific or more general and only become active after the individual has been determined to be unable to make or communicate a medical decision. A Living Will supplements the Healthcare Power of Attorney by providing a means to understand and honor your personal wishes.
Five Wishes
Five Wishes is a Living Will document that lets your family and doctor know your healthcare decisions and wishes and that meets legal requirements in Nebraska and Iowa. The “Five Wishes” include: (1) the person you would like to make healthcare decisions on your behalf, (2) the kind of medical treatment you would want, (3) how comfortable you want to be, (4) how you want people to treat you and (5) what you want your loved ones to know. You can call 1-888-594-7437 for information or an online version can be found at www.agingwithdignity.org.
Code/No Code – Do Not Resuscitate (DNR) Order
Code/No Code is a medical order that states whether an individual wishes attempts to be made to restart his or her heart and lungs in the event that they stop working. It is also known as a DNR Order. Hospitals and care facilities often ask terminally ill patients or their agent to write a Code/No Code order for their medical record.
Powers of Attorney
Powers of Attorney (POAs) are legal documents that appoint trusted persons to assist with medical or financial management on an individual’s behalf. If a Power of Attorney is durable, it will continue to be in effect after the individual is deemed incapable of making decisions on their own. It does still allow the individual to make decisions as long as they are capable. If a Power of Attorney is springing, it becomes effective upon the individual’s incapacity.
Healthcare Power of Attorney
A Healthcare Power of Attorney (HCPOA), or Medical Power of Attorney, appoints a trusted agent (the principal) to make medical decisions for an individual who cannot make or communicate a needed medical decision. The principal has the same rights as the individual to accept or reject treatments, provide instructions for desired end of life care, authorize access to medical records, admit the individual to hospitals or facilities and relay feelings regarding hospice care, specific medical procedures, organ donation or funeral instructions. There must be documentation from a physician regarding the incapacitation of the individual to become effective.
A Healthcare Power of Attorney must be written as well as signed and either witnessed by two adults or notarized. You may revoke your HCPOA at any time by notifying your healthcare provider or attorney or by making a new Healthcare Power of Attorney. An HCPOA prepared in another state is honored in Nebraska and Iowa.
Financial Power of Attorney
A Financial Power of Attorney (FPOA) appoints a trusted agent to manage finances and property for an individual. These may include checking accounts, savings accounts, safety deposit boxes, securities, investments and more. An FPOA can be granted to a spouse so they may manage or access another spouse’s individually owned assets or the agent may be another competent adult.
A Financial Power of Attorney must be written as well as signed and either witnessed by two adults or notarized. You may revoke your FPOA at any time.
The HCPOA and FPOA may be the same person or two different people. If they are different, they must be able to work closely together. An attorney can assist in preparing a power of attorney. Contact an elder law attorney or visit the Nebraska or Iowa State Bar Association for more information.
Guardianships and Conservatorships
If an incapacitated individual does not have powers of attorney in place or will not cooperate with their POA, the local court may appoint a Guardian or Conservator to assist and protect the individual.
Guardianship
An interested party may petition the court to appoint a Guardian to assist an individual whom doctors find unable to manage their health or daily needs if no durable Healthcare Power of Attorney is in place. Family, friends or community volunteers may serve as the Guardian. The Guardian must work within the individual’s resources to provide food, clothing, shelter and healthcare. A Guardian must report annually to the court on the individual’s condition and progress.
Conservatorship
An interested party may petition the local court to appoint a Conservator to assist an individual whom doctors find unable to manage their property and finances. Family, friends or community volunteers may serve as a Conservator. The Conservator will use the individual’s assets to pay for medical care and support and may also apply for government benefits to assist with these costs. The Conservator must file a detailed annual accounting report for review by the court.
The Guardian and Conservator may be the same person or two different people. If they are different, they must be able to work closely together. Call the Office of Public Guardian at 402-889-3272 or contact an elder law attorney for more information.
Representative & Protective Payee
Representative Payee
A Representative Payee is a person appointed by the Social Security Administration to handle all of an individual’s Social Security affairs. That person must file an application with the Social Security office and have medical verification that the person is incapacitated.
Protective Payee
A Protective Payee is a person appointed by the Nebraska or Iowa Department of Social Services to handle the protected person’s state benefits.
Probate, Wills and Trusts
Powers of Attorney, Guardianships and Conservatorships lose their authority to act when the individual dies. After death, the estate will often go into probate and the assets of the deceased individual are controlled primarily by his or her Will or Trust.
Probate
Probate is a legal process that takes place after an individual’s death. Probate courts admit wills, appoint personal representatives, oversee the accounting and distribution of the estate and preside over any will contests that may be filed. The probate process can be short and informal or longer and overseen by the court depending on the size of the estate.
Will
A Will is a legal document that appoints someone to administer their estate, a personal representative, and says to whom assets should go. If an individual dies without a will, state statutes determine the distribution of assets. Someone must still administer the estate. A Will must be written, signed and witnessed by at least two individuals as required by state law.
Trust
A Trust is a legal entity created by the individual to hold title to his or her assets. All assets are transferred to the trust. A trustee may manage assets during the individual’s lifetime in case of illness. When the individual dies, the Trust continues to own the assets and the beneficiaries bypass the probate process in obtaining assets. If an individual creates a Trust, he or she typically will still create a brief accompanying Will. An attorney can provide advice as to when a Will alone is adequate and when a Trust might have advantages.
Legal Assistance
State Bar Associations
Mediation
Many law firms offer mediation services. Consult your phone book for further listings.
Private Practice Attorneys Specializing in Probate, Wills and Estate Planning
Many firms have attorneys with experience in probate, wills and estate planning.