Document Sample
					Substitute Judgment Series
* This is basic information and does not constitute legal advice.

The Center for Disability Rights, Law, and Advocacy

What is substituted judgment? Substituted judgment can be used if you need help making decisions about your care or property. There are several types of substituted judgment you can choose. The best type of substituted judgment is one that allows you to be as independent as possible. What are the types of substituted judgment? There are many types of substituted judgment you can choose. The different types include: health care power of attorney, representative payee, power of attorney, durable power of attorney, conservatorship, and guardianship. The types are listed in order from allowing you the most independence (health care power of attorney) to the least independence (guardianship).

Power of Attorney
What is a power of attorney? A power of attorney is a paper that creates a relationship between a “principal” and an “agent.” The principal is the person who needs help making decisions. The principal chooses an agent, or power of attorney, who helps make sure the principal’s needs are met. In other words, the agent makes decisions for you to make sure that your needs are met. Neb. Rev. Stat. §§49-1508; 49-1517; 49-1519 (2006). When is a power of attorney used? A power of attorney is used when you cannot make decisions regarding your finances or property. The agent will make those decisions for you. If you would like to have the agent remain in place even after you become incompetent, you will have to create a “durable power of attorney.” If you do not want the agent to continue making decisions for you if you become incompetent, you will create a “nondurable power of attorney” (See “Power of Attorney” form (attached) and “Durable Power of Attorney” material.) Neb. Rev. Stat. §§49-1523 (2006). How is a power of attorney created? To create a power of attorney, you must choose a person to be your agent. You must state the person’s name in writing. You must sign and notarize the writing and then it must be accepted by the agent. To see how a power of attorney is created, see the form attached to the back of this document. Neb. Rev. Stat. §49-1522 (2006).

134 South 13th Street, Suite 600 • Lincoln, Nebraska 68508 402-474-3183 • TDD Available • 1-800-422-6691 • fax: 402-474-3274 •

The Protection and Advocacy System in Nebraska

How does a power of attorney work? A power of attorney requires that you be a competent person. The agent can be any person who you choose and name in the power of attorney. Once the power of attorney is in place, you have the ability to modify it. This means that you are able to change the types of decisions that the agent can make for you. For example, if you have authorized your agent to sign checks for you, you can change the power of attorney so that the agent no longer has that authority. However, the agent would still keep the other powers that you have given them. You also have the ability to change the power of attorney to allow the agent to make more decisions for you. Neb. Rev. Stat. §49-1523 (2006). How does a power of attorney end? A power of attorney can end in one of three ways: When you die; If you are determined to be incompetent. This means that if you are determined incompetent by a judge or at a hearing, the agent would no longer be able to make decisions or carry out other duties for you; or If you cancel it when you are competent or if your conservator cancels it if you are incompetent. Once cancelled, the power of attorney is terminated. If you or your conservator has effectively revoked the power of attorney, the agent no longer has the authority to make decisions for you under the revoked power of attorney. Neb. Rev. Stat. §§49-1523; 49-1560 (2006). However, if the agent acts on your behalf without knowing that you are dead, incapacitated, or that the power of attorney has been cancelled, the act of the agent will be effective. If the agent acted knowing those things, his or her actions would not be effective. Neb. Rev. Stat. §30-2668 (2006).



_______________________________, a domiciliary of _______________________ County, Nebraska, Principal desiring and intending to establish a Power of Attorney operative under the Nebraska Short Form Act, does hereby appoint, constitute, and designate ___________________, a __________________________________ of or with an office in ____________________________ County, Nebraska, Agent, the lawful and true Agent and attorney in fact for Principal; and Principal does hereby further provide and stipulate in connection therewith as follows: 1. This Power of Attorney is, as marked, a ( ) Durable Power of Attorney and a ( ) Contingent Durable Power of Attorney, upon the contingency of, ( ) Incompetence of Principal, or ( ) Other Contingency:________________________________, or ( ) Present Durable Power of Attorney ( ) Nondurable Power of Attorney 2. By this Power of Attorney, Principal confers upon and grants to Agent plenary power, plenary power subject to limitations, or all and each of the listed general powers as individually marked: ( ) Plenary Power; or ( ) Plenary Power Subject to Limitations, exclusive of General Powers for Domestic and Personal Concerns and for Fiduciary Relationships and ( ) No Other Restrictions, or ( ) Other Restrictions:______________________________________; or ( ) General Power for Bank and Financial Transactions. ( ) General Power for Business Interests. ( ) General Power for Chattels and Goods. ( ) General Power for Disputes and Litigation. ( ) General Power for Domestic and Personal Concerns. ( ) General Power for Fiduciary Relationships. ( ) General Power for Governmental and Other Benefits. ( ) General Power for Insurance Coverages and Policies. ( ) General Power for Proprietary Interests and Materials. ( ) General Power for Real Estate. ( ) General Power for Securities. ( ) General Power for Records, Reports, and Statements. 3. By this Power of Attorney, Principal makes the following additional provision or provisions: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________


4. This Power of Attorney revokes and supersedes all prior executed instruments of like import and remains operative until revoked. EXECUTED AT _____________________________________, ____________________ County, Nebraska, on _______________________________ ______, 20___. ___________________________ Principal ) ) SS. COUNTY OF _____________________) The foregoing instrument was acknowledged before me on _____________________ ______, 20___, by the Principal _____________________________________________. ___________________________ Notary Public STATE OF NEBRASKA


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