Power of Attorney vs. Guardianship in Nebraska: What’s the Difference?

When it comes to helping a loved one manage their health care or finances, two terms often come up: power of attorney and guardianship. Both allow someone to make decisions on behalf of another person—but they operate very differently under Nebraska law. Understanding the distinction is key to making the right choice for your family.

What Is a Power of Attorney?

A power of attorney (POA) is a legal document where one person (the principal) voluntarily gives another person (the agent) authority to act on their behalf. There are two main types:

• Financial Power of Attorney – Covers property, banking, investments, taxes, and other financial decisions

• Health Care Power of Attorney – Covers medical decisions if the principal is unable to make them

The power of attorney can be general (broad authority) or limited (narrow scope). A durable POA remains in effect even if the principal becomes incapacitated. In Nebraska, POAs must be signed by the principal and notarized to be valid (Neb. Rev. Stat. § 30-4005; healthcare POAs § 30-3401).

The biggest advantage? The principal stays in control. As long as they’re competent, they can revoke or change the POA at any time. No court involvement is required.

What Is Guardianship?

Guardianship is a court-ordered legal relationship where one person (the guardian) is appointed to make personal decisions for another person (the ward) who is unable to make decisions for themselves due to incapacity. This process is governed by Nebraska’s Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA), which became effective January 1, 2023.

Adult guardianship is a court-ordered legal relationship where one person (the guardian) is appointed to make personal decisions for another adult (the protected person, or ward) who is unable to make decisions for themselves due to incapacity. This can include decisions about health care, living arrangements, daily care, education, and more. If the individual also needs help managing their finances and property, a separate court-appointed conservator may be necessary.

Unlike a POA, guardianship is not voluntary. The process involves:

• Filing a petition in county court

• Providing medical evidence of incapacity

• Court investigation (visitor, GAL, hearing)

• Judge determining if guardianship is necessary

Guardianship takes away certain rights from the ward and gives them to the guardian. It can be full or limited, depending on the situation. Nebraska law (under UGCOPAA) requires guardianship to be as limited as possible and used only when less restrictive alternatives (like POA or supported decision-making agreements) aren’t available or effective.

Key Differences Between POA and Guardianship in Nebraska

A power of attorney (POA) is a voluntary legal tool created by someone who is mentally competent. It does not require court involvement, and the principal—the person granting authority—retains full control. They choose who will act on their behalf, what powers they have, and when those powers take effect. A durable POA remains effective even if the principal becomes incapacitated, making it a powerful preemptive planning tool. Because it’s revocable, the principal can change or cancel the POA at any time, as long as they’re still competent.

By contrast, guardianship is a court-imposed relationship. It is only initiated when someone is already incapacitated and can no longer make informed decisions for themselves. The process involves filing a petition, submitting medical evidence, and going through a court hearing. The judge—not the individual—decides whether a guardian is needed, who it should be, and what powers they’ll have. Guardianship can be full or limited, and while it is tailored to the person’s specific needs, it results in the court removing certain rights from the individual. It cannot be revoked by the individual—it can only be modified or terminated by the court.

In short, POA is a less restrictive, proactive option that preserves autonomy. Guardianship is a reactive measure that steps in when planning hasn’t happened—or can’t.

When to Use Each Option

Use a Power of Attorney if:

• The person is competent and able to plan ahead

• You want to avoid court involvement

• You want flexibility in choosing your agent and setting limits

Use Guardianship if:

• The person is already incapacitated and can’t sign legal documents

• There’s no valid POA in place

• There are concerns about safety, exploitation, or decision-making ability

Before filing, it’s important to explore less restrictive alternatives like powers of attorney or supported decision-making agreements, where an individual retains their decision-making authority but enlists trusted persons to help them understand, make, and communicate choices.

Why Planning Ahead Matters

A power of attorney is a simple but powerful tool. It keeps control in the hands of your loved one and can avoid the stress, cost, and complexity of guardianship. But once someone becomes incapacitated, it’s too late to sign a POA—and guardianship may be the only option.

That’s why planning ahead is so important. Creating a power of attorney while someone is healthy and competent ensures their wishes are respected, protects their independence as long as possible, and provides invaluable peace of mind for both them and their loved ones. If you wait until it’s too late, guardianship may become the only option—a process that is often more costly, stressful, and involves the court dictating decisions about your loved one’s life.

If you’re not sure which path is right for your situation—or if you need help setting up a POA or seeking guardianship in Nebraska—I’m here to help. Contact me at 402-259-0059 or zach@zandersonlaw.com.