When a Spouse Has Dementia: Why a Nebraska Power of Attorney Is Still Essential
I frequently receive calls from clients facing a difficult and unexpected situation. A husband has been diagnosed with dementia. His wife calls the life insurance company, or maybe the bank, expecting to handle his affairs — after all, they’ve been married for decades. But the company refuses to speak with her. She’s stunned. Frustrated. She asks: Why do I need a power of attorney? I’m his wife. Isn’t that enough?
This is an incredibly common misconception, and it’s one that can cause serious complications. Nebraska estate planning law draws a very important distinction between simply being someone’s spouse and having the legal authority to act on their behalf. These are two very different things. And when incapacity arises, this distinction becomes critical.
This is why having a Nebraska durable power of attorney is one of the most essential steps in any well-crafted estate plan — whether you’ve been married one year or fifty.
Under the Nebraska Uniform Power of Attorney Act, our legal system treats the power to act for someone else — what we often call agency — as something that must be clearly and formally granted. Your marriage license does not, on its own, give you that legal authority. Without a durable power of attorney in place, third parties such as banks, insurance companies, and even healthcare providers are not required to take your instructions or share information with you about your spouse.
Why? Because an agent under a Nebraska power of attorney can do a lot. They can enter binding agreements, manage and transfer funds, take on debt, and make decisions that affect the future of an estate. The law takes this very seriously, and it rightly requires clear documentation of who holds that power.
And the word durable matters here. A Nebraska durable power of attorney (meaning it remains effective even if the person granting it — called the principal — becomes incapacitated) is what allows you to continue helping your spouse when they are no longer able to handle matters themselves. Without it, you could be forced into the court system to pursue a formal Nebraska guardianship or conservatorship — a process that is far more time-consuming, expensive, and intrusive. And once capacity is lost, it’s often too late to avoid court intervention.
This is also why timing is so important. Nebraska law requires that the person signing a power of attorney must have sufficient legal capacity to understand what they are doing. If you wait too long, when dementia or cognitive decline has progressed, you may no longer be able to put the document in place.
A Nebraska financial power of attorney and health care power of attorney can give you the legal standing you need to manage finances, make medical decisions, receive protected health information under HIPAA, and communicate with providers and companies on your spouse’s behalf — all without having to go to court.
This is also a moment to think carefully. If your spouse is beginning to lose capacity, you may not want to name them as your own agent going forward. It’s a conversation worth having with your estate planning attorney, because who you empower through a Nebraska power of attorney can have real consequences — for you, your finances, and your future estate. It is also wise to name successor agents who can step in if your primary choice is unable to serve.
So if you’ve ever wondered: Don’t I already have that power just because we’re married? — in Nebraska, the answer is no. The time to take action is before you find yourself on the phone with a company that won’t speak to you — or worse, in a courtroom seeking the authority to do what could have been handled with the right documents.
If you would like help putting the right Nebraska power of attorney documents in place, or if you are navigating a situation where your spouse is already experiencing incapacity, I would be glad to assist. You can reach me at 402-259-0059 or by email at zach@zandersonlaw.com. Don’t wait until it’s too late — planning ahead now can save you significant hardship down the road.