03/30/2022

Nebraska's Health Care Surrogacy Act

In the course of their practice, client advisors often become aware of situations where longtime clients and/or family members of clients become incapable of making health care decisions for themselves. Absent a properly executed health care power of attorney, oftentimes the only advice in such situations is the initiation of expensive and time consuming legal guardianship proceedings to have a court appoint a surrogate, or guardian, to make such decisions.

In 2018 the Nebraska Legislature addressed this situation by establishing a process for the designation of a person to make such health care decisions for incapacitated adults in the absence of a court appointed guardian or a properly executed health care power of attorney. A brief overview of noteworthy provisions of the Health Care Surrogacy Act (the “HCSA”) follows.

The Health Care Surrogacy Act

The HCSA is a Nebraska law that allows an individual to be designated to make health care decisions on behalf of another incapacitated person in the absence of a court appointed guardian or properly executed health care power of attorney.

Surrogate Designation

To designate a surrogate, the HCSA requires an adult (persons aged 19 or older or emancipated minors) to personally inform the individual’s primary health care provider. This can be done verbally or in writing. No matter how the patient designates a surrogate, once the designation is made, the patient’s primary health care provider is required to document the designation in the patient’s medical record. A surrogate’s authority to make health care decisions begins after a primary health care provider has determined that the patient is incapable of making his or her own health care decisions.

Importantly, if an individual:

• Has not designated a surrogate under the HCSA,
• Has not designated an agent under a health care power of attorney, and
• No guardian has been appointed by the Court

the HCSA also establishes an order of priority of natural persons who may act as an individual’s surrogate if the potential surrogate is reasonably available at the time a health care decision is to be made on behalf of the individual and if the potential surrogate has not otherwise been disqualified under the HCSA. The order of priority for such surrogates in the absence of a patient’s own designation is as follows:

1. The individual’s spouse, unless legally separated from the individual or legal separation or divorce proceedings are pending;
2. An adult child or emancipated minor child of the individual;
3. A parent of the individual; or
4. A brother or sister of the individual who is an adult or emancipated minor.

Primary Health Care Provider

A primary health care provider is a physician designated by the individual, by an agent under a health care power of attorney, by an individual’s guardian, or by a surrogate who has the primary responsibility for an individual’s health care.

Surrogate Authority

Surrogate authority begins once the primary health care provider determines that an individual is incapable. Under the HCSA, incapable means that the patient lacks the ability to understand and appreciate the nature and consequences of a proposed health care decision, including the benefits of, risks of, and alternatives to any proposed health care, or lacks the ability to communicate in any manner such health care decision. If the primary health care provider determines that a patient is incapable, the determination must be made in writing and documented along with its nature and cause in the patient’s medical record. Notice of the determination is given to the patient, to the surrogate, and to any applicable health care facility.

In exercising their authority, surrogates must consult with a patient’s health care providers and make health care decisions in light of the patient’s instructions if known, otherwise according to the individual’s best interests. Note that the HCSA does not grant a surrogate authority to withhold or withdraw consent to routine care to maintain patient comfort or the usual and typical provision of nutrition and hydration.

Successor Surrogates

A person may decline to serve as a surrogate by informing the individual’s primary health care provider, and that fact must be noted in the individual’s medical record. The primary health care provider can then determine whether another surrogate is willing to serve in that capacity. In addition to those listed in order of priority above, a person who has exhibited special care and concern for the individual, who is familiar with the individual’s personal values, and who is reasonably available to act as a surrogate may also serve as a surrogate in the absence of those having a higher priority. Notably this provision allows an unrelated person to serve as a surrogate under certain circumstances.

If you have any questions regarding the application of the HCSA, please contact a member of McGrath North’s Tax and Estate Planning Group.