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

When a loved one needs help managing their health care or finances, two legal tools often come up: power of attorney and guardianship. While both allow someone to make decisions on behalf of another person, they function very differently under Nebraska law. Knowing which one applies—and when—is essential for protecting your loved one’s wellbeing and autonomy.

What Is a Power of Attorney in Nebraska?

A power of attorney (POA) is a legal document that allows one person (called the principal) to voluntarily give another person (called the agent) authority to act on their behalf. Nebraska law recognizes two primary types of POA:

Financial Power of Attorney gives the agent authority to manage property, pay bills, handle banking and taxes, and make other financial decisions.

Health Care Power of Attorney allows the agent to make medical decisions if the principal is unable to do so due to illness or incapacity.

A POA can be broad (general) or limited in scope. A durable POA stays in effect even if the principal becomes incapacitated. In Nebraska, POAs must be signed and notarized to be valid under Neb. Rev. Stat. § 30-4005 (for financial) and § 30-3401 (for healthcare). The principal retains full control and can revoke or change the POA at any time while they are competent. There is no court involvement.

What Is Guardianship in Nebraska?

Guardianship is a court-ordered legal arrangement used when an adult can no longer make safe or informed decisions due to incapacity. The court appoints a guardian to make decisions about personal care—such as health, living arrangements, education, or daily needs. If the person also needs help managing money or property, a conservator may be appointed separately.

Unlike a POA, guardianship is not voluntary. It’s only used when someone lacks the capacity to execute legal documents or make decisions for themselves. Nebraska’s Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA), effective January 1, 2023, requires courts to use the least restrictive option possible. Guardianships must be limited whenever appropriate.

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

While both tools involve one person acting on behalf of another, they are fundamentally different in purpose, process, and impact. Here’s a breakdown of how they compare:

How They Begin

A POA is created by a mentally competent adult. It’s proactive, flexible, and based on the individual’s choice. In contrast, guardianship is imposed by a court after a person has already lost capacity. It’s a protective measure—not a planning tool.

Court Involvement

POAs do not require any court involvement. Guardianship, on the other hand, is a full legal proceeding that involves a petition, supporting documentation, court-appointed investigators, and a hearing. The court maintains ongoing oversight.

Control and Revocability

A person with a POA retains control. They choose their agent, define the scope of authority, and can revoke it at any time. In guardianship, the court decides who the guardian is, what powers they have, and when the relationship ends. The ward cannot revoke the guardianship.

Timing and Use

Use a power of attorney before incapacity, while the individual is still able to understand and sign legal documents. Guardianship is used only after a person becomes legally incapacitated and can no longer manage their own affairs.

Scope and Autonomy

POAs can be limited or broad, depending on the principal’s wishes. Guardianship must be limited to only those powers necessary, but it still results in the removal of some personal rights.

When to Use a Power of Attorney vs. Guardianship

Consider a Power of Attorney if:

• The person is still mentally competent

• You want to avoid court proceedings

• You need flexibility in choosing who will act and what they can do

Consider Guardianship if:

• The person is already incapacitated

• There is no valid POA in place

• You have concerns about the individual’s safety or vulnerability to exploitation

Before pursuing guardianship, Nebraska law requires that you explore less restrictive options like POAs or supported decision-making agreements. Guardianship should always be a last resort.

Why Planning Ahead Matters

A valid power of attorney can eliminate the need for guardianship entirely. It allows your loved one to keep control and choose who will step in to help if needed. But once someone becomes legally incapacitated, it’s too late to sign a POA—and guardianship may be the only option.

Planning ahead gives your family peace of mind. It protects your loved one’s independence as long as possible and ensures decisions are made by the people they trust, without unnecessary court involvement.

Frequently Asked Questions (FAQ)

What’s the main difference between a POA and guardianship in Nebraska?

A POA is a voluntary legal document created by a competent adult. Guardianship is a court-ordered relationship that begins only after someone becomes incapacitated.

Can a person with a POA still make their own decisions?

Yes. The principal keeps full decision-making authority unless the POA says otherwise. The agent acts only as needed or as authorized.

Can a POA prevent the need for guardianship?

Often, yes. A well-drafted durable POA can allow someone to manage finances or health care without needing court involvement.

Is guardianship permanent?

Not necessarily. Guardianships can be modified or terminated if the ward’s condition improves or if less restrictive alternatives become viable.

What if someone contests a guardianship?

The proposed ward has the right to attend the hearing, contest the guardianship, and be represented by legal counsel. Others can also oppose the petition or propose alternatives.

Final Thoughts

Both power of attorney and guardianship serve important roles—but they are not interchangeable. A power of attorney preserves autonomy and should be part of every adult’s planning toolkit. Guardianship is a safety net, used when there’s no other option.

If you’re not sure which path is right—or if you need help creating a POA or seeking guardianship in Nebraska—I can help. I’ll walk you through your options with clarity, compassion, and the legal insight to make sure your loved one is protected and respected.

To schedule a consultation or talk through your situation, contact me at 402-259-0059 or zach@zandersonlaw.com.