Nebraska Legislative Update: Health Care Surrogacy Act and Judicial Emancipation of Minors

Nebraska Health Care Surrogacy Act

On April 4, 2018, Governor Pete Ricketts signed LB 104, the Health Care Surrogacy Act (“HCSA”), into law. The purpose of the HCSA is to establish a process for the designation of a surrogate to make a health care decision for an emancipated minor or an adult who is otherwise incapable, or becomes incapable, of making such a decision in the absence of an advance health care directive or a guardian. The HCSA is effective on July 19, 2018.

A surrogate’s authority to make health care decisions for an individual requires a determination documented by the individual’s primary health care provider that the individual is “incapable,” meaning that the individual either lacks the ability to communicate in any manner his or her health care decisions or otherwise lacks “the ability to understand and appreciate the nature and consequences of a proposed health care decision, including the benefits and risks of, and alternatives to any proposed health care. In short, the individual is incapable of providing informed consent for any health care procedures. Any finding of incapability may be challenged at court by any party granted standing under the HCSA.

Under the HCSA, surrogates are determined in one of the following ways:

1. an individual may personally inform his or her primary health care provider of the surrogate’s identity, or
2. in the event that an individual did not appoint a surrogate and there is no court-appointed guardian or power of attorney for health care, a member of one of the classes listed in the following “Order of Priority” may act as a surrogate for the individual as long as he or she is reasonably available when the health care decision must be made and has not been disqualified by the individual’s primary health care provider through applying standards under the HCSA:
   1. the individual’s spouse, unless legally separated, divorced, divorce proceedings are pending, or the marriage was annulled;
   2. the individual’s child (adult or emancipated minor);
   3. parent; or
   4. brother or sister (adult or emancipated minor).

The HCSA allows multiple members of the same class of priority to serve as surrogates for an individual (e.g., adult children, or siblings). If the surrogates cannot agree about a health care decision regarding the individual, the HCSA establishes certain procedures that must be followed. Ultimately, all health care decisions should be guided by the individual’s known desires about health care, personal values, moral and religious beliefs, and the individual’s best interests. Once a surrogate assumes his or her authority, the individual’s family members must be promptly notified about the surrogate’s authority to make health care decisions for the individual.

The HCSA provides for the disqualification of certain persons from serving as a surrogate. An individual’s primary health care provider can only disqualify surrogates appointed via the priority list and upon a showing of clear and convincing evidence that the potential surrogate had an abusive relationship with the individual or is not acting in the best interests of the individual. Also, an individual may disqualify a person from serving as his or her surrogate—even a family member—by communicating such disqualification to his or her primary health care provider in a signed and dated writing or by personally informing his or her primary health care provider in the presence of a witness (an adult or emancipated minor who is not eligible for surrogacy under the order or priority). Such disqualification must be entered into the individual’s medical record at the health care facility where he or she is a patient or otherwise resides.

While the HCSA grants a surrogate authority to make health care decisions on behalf of an individual, this authority is limited by the following:

1. a surrogate’s authority only applies to health care decisions, nothing else;
2. the individual’s documented instructions have precedence over the surrogate’s authority; and
3. the surrogate cannot:
   1. consent to any unlawful act or omission,
   2. make any decision that will result in the death of the individual’s unborn child, if the individual is known to be pregnant and it is probable that the unborn child will develop to the point of live birth with the continued provision of healthcare; or
   3. decide to withhold or withdraw life-sustaining procedures or withhold or withdraw artificially administered hydration or nutrition, unless previously authorized by the individual or if the individual’s condition is terminal.

Also, before the individual’s primary health care provider can act on a surrogate’s health care decision, he or she must confirm that the individual continues to be incapable in writing and documented in the individual’s medical record. Finally, the HCSA clarifies that a health care facility is not required to honor a surrogate’s health care decision if the decision is contrary to the health care facility’s formal policy that is “expressly based on religious beliefs or sincerely held ethical or moral convictions central to the operating principles of the health care facility.”

LB 714 (Judicial Emancipation of a Minor)

On April 17, 2018, the Governor signed LB 714, a bill establishing a procedure for judicial emancipation of minors, into law. Before LB 714, the primary precedence for judicial emancipation of minors in Nebraska was based in common law. See Wulff v. Wulff, 500 N.W.2d 845 (Neb. 1993). Starting on July 19, 2018, a minor who is at least sixteen (16) years old and either married or living separately from his or her parents or legal guardian may file a petition in the district court of the county of his or her residence, seeking judicial emancipation. LB 714 establishes the content of an emancipation petition, to whom notice and service of the emancipation action must be given, and requires that the petitioner (minor seeking emancipation) prove by clear and convincing evidence that the requirements for emancipation have been met.

Once the petitioner has satisfied her burden, the court may enter a judgment of emancipation. This judgment officially removes “the disability of minority” regarding multiple legal situations; the following are especially relevant to the health care industry, the minor may:

1. incur indebtedness or contractual obligations;
2. consent to medical, dental, or psychiatric care without the knowledge, consent, or liability of his or her parents or guardian;
3. be individually eligible for public assistance;
4. be a named party in the litigation and settlement of lawsuits; and
5. acquire, encumber, and convey property or any related interests.

Finally, LB 714 clarifies that when a minor is emancipated, “the minor shall be considered in law as an adult and any obligation or benefit he or she incurs is enforceable by and against such minor without regard to his or her minority.”

Takeaways

Here are three things that your Nebraska health care facility should do in response to HCSA and LB 714:

1. Review your surrogate consent policy and update as necessary, including how your organization will handle conflicts among multiple surrogates in a class.
2. Review how your organization handles consent issues involving emancipated minors and update as necessary. What types of documentation should you ask for when a minor claims he or she is emancipated?
3. Provide training sessions to clarify policy and procedure.

Sean T. Nakamoto