Lapin Law Offices

ESTATE ISSUES

Unfortunately, the only certainties in life are death and taxes. While no one wants to contemplate their own death, every adult should consider what would happen in the case of a serious injury or their death. At Lapin Law Offices we try to help people consider their options and set forth basic plans in the case the worst happens.

ESTATE PLANNING

Every adult should have an estate plan, whether it be as simple as a will or as complex as partnerships, trusts and many other items. While we at Lapin Law Offices do not handle complex estate issues, we do have experience drafting simple wills. How complex your situation is depends mostly dependent on the size of your estate. There are complicated tax issues involved in large estates.

In conjunction with an estate plan, adults should also consider having a Health Care Power of Attorney and a Living Will/ Declaration. These items help direct what should happen to you if you sustain a very serious injury and cannot make health care decisions for yourself.

HEALTH CARE POWER OF ATTORNEYS FOR HEALTH CARE

Nebraska law sets forth the requirements for a valid Health Care Power of Attorney for Health Care. The requirements are fairly simple. In general, you may designate one or more persons to make health care decisions for you. With the power of attorney, depending on how it is drafted, your power of attorney can do almost anything you could do if you were competent. This includes carrying our your wishes regarding life sustaining treatment. While a health care provider is not obligated to follow your power of attorneys directions, he or she can require you be transferred to a facility in which they will follow the instructions.

DECLARATION/ LIVING WILL

Nebraska, in the Rights of the Terminally Ill Act, has recognized a person’s constitutionally protected right to direct their medical care. A Declaration, also sometimes called a Living Will, The Act contains a simple form that a person could use if they want to a Directive regarding medical care. The statutory form is not required. Other than doing something prohibited, all that is required is that it be witnessed by two adults, one of which cannot be employed by the health care provider who is caring for the person, or a notary public. Similar to a Health Care Power of Attorney for Health Care, a health care provider is not obligated to follow your Declaration, a health care provider who refuses to abide by it must take reasonable steps to transfer your care to a health care provider or facility that will. In addition, decisions and actions made pursuant to the Act cannot be considered suicide or homicide.

While it may serve additional purposes, the main reason for having a Declaration is if you enter into either a “persistent vegetative state” or have a “terminal condition” as defined by the Act. Under either scenario you have the right, by way of a properly executed Declaration, to make the decision whether to withhold or withdraw “life sustaining treatment.” This includes the withdrawing of food, by means of feeding tube, or water, including artificial hydration.

Definitions in the Rights of the Terminally Ill Act:
Life sustaining treatment: any medical procedure or intervention that, when administered will serve only to prolong the process of dying or maintain a persistent vegetative state.
Persistent vegetative state: a medical condition that, to a reasonable degree of medical certainty as determined in accordance with currently accepted medical standards, is characterized by a total and irreversible loss of consciousness and capacity for cognitive interaction with the environment and no reasonable hope of improvement.
Terminal condition: an incurable and irreversible conditions that, without the administration of life sustaining treatment within a relatively short time.

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