Why Proactive Estate Planning Matters

We all tend to put off the hard stuff. Estate planning is no exception. But when it comes to incapacity — whether due to illness, injury, or cognitive decline — waiting to act can put everything and everyone you care about at risk.

Here’s the part most people overlook: estate planning isn’t just about what happens after you die. It’s also about protecting your rights, finances, and medical decisions while you’re alive. That’s where incapacity planning comes in.

Whether you’re reviewing an existing plan or just starting the process, here’s what you need to know.

The Risk of Waiting to Plan for Incapacity

It’s common for people to delay estate planning until something happens — a diagnosis, a decline in a parent’s health, or a sudden accident. But if legal capacity is lost, it’s often too late to execute valid documents. And without those documents, your loved ones are left with very few options other than going to court.

This is where Nebraska guardianship and conservatorship proceedings come into play. They’re sometimes necessary — but they’re also expensive, time-consuming, and emotionally draining. A strong estate plan helps you avoid those outcomes.

Legal Capacity: Why Timing Is Everything

Under Nebraska law, estate planning documents — like powers of attorney and trusts — are only valid if the person signing them has legal capacity. That means they must understand what they’re signing, what the document does, and what the consequences are.

Once capacity is gone, so is your ability to make legally binding decisions. That’s why the best time to create your plan is before a medical crisis or decline in mental function. It’s not just good legal advice — it’s the best way to preserve your autonomy.

What Every Adult Should Have in Place

Durable Power of Attorney for Financial Decisions

This document lets you appoint someone to handle your finances if you’re unable to. That includes paying bills, managing investments, filing taxes, and taking care of day-to-day money matters.

Health Care Power of Attorney and Living Will

Your Health Care Power of Attorney designates someone you trust to make medical decisions on your behalf if you can’t. A Living Will (also called an Advance Directive) spells out your preferences for end-of-life care, like life support or feeding tubes.

Mental Health Treatment Authorization

Not all powers of attorney automatically include this — and they should. Mental health records are often subject to stricter privacy rules, and standard HIPAA releases may not be enough. This added authorization ensures that your chosen agent can access mental health information and make treatment decisions, especially in emergencies.

Keep Your Documents Current

Old, boilerplate, or incomplete documents can backfire. Banks may reject outdated financial POAs. Hospitals may hesitate to follow vague or conflicting instructions. A quick review every few years — or after major life changes — helps ensure your plan still fits your needs and will actually work when it’s needed.

Why a Revocable Living Trust Can Help

For many Nebraskans, a revocable living trust is one of the most powerful tools to protect against incapacity.

Here’s how it works: if you become incapacitated, your successor trustee (who you choose ahead of time) can immediately step in and manage your assets — without court approval.

This is especially important for assets like real estate, investments, or financial accounts titled solely in your name. If those aren’t in a trust, your family may need a conservatorship just to access or manage them. But if they’re already in a funded trust, everything can continue smoothly.

Bonus: a revocable trust also helps avoid probate at death, which saves your loved ones time, money, and stress.

Estate Planning Isn’t One-and-Done

Your estate plan should evolve as your life does. Marriage, divorce, a new diagnosis, the birth of a child, or a change in your financial situation are all triggers for a review. Documents aren’t just legal formalities — they’re tools meant to serve you, and they need regular attention to stay useful.

If you’ve been meaning to get your plan in place, or it’s been years since your last update, don’t wait for a crisis. The best time to plan is before you need it.

Want to start the conversation or review your current plan? Call 402-259-0059 or email zach@zandersonlaw.com.

Frequently Asked Questions

What is legal capacity in Nebraska?

Legal capacity means you understand what a legal document does and what its consequences are. In Nebraska, if someone lacks legal capacity, they cannot validly sign estate planning documents — and the only option may be court intervention through guardianship or conservatorship.

What is a Durable Power of Attorney?

A Durable Power of Attorney lets you appoint someone to make decisions for you if you’re incapacitated. There are two main types: one for financial matters and one for health care decisions. Both are essential for incapacity planning.

Do I need a revocable living trust?

If you own property or want to avoid probate and court involvement in the event of incapacity, a revocable living trust may be a smart choice. It allows for a seamless transition in managing your assets without needing a conservatorship.

How often should I update my estate plan?

Review your estate plan every 3–5 years or whenever you experience a major life change — like marriage, divorce, birth of a child, a health diagnosis, or a change in finances.

What happens if I don’t have a plan and become incapacitated?

Without valid powers of attorney or a trust, your family will likely need to petition the court for a guardianship or conservatorship — a public, expensive, and time-consuming process.