North Dakota Durable Power of Attorney

Introduction

Key Things to Know

1. 1

   A durable power of attorney lets someone act for you. It names an agent, also called your attorney-in-fact, to handle your money, property, and business matters. Durable means the document keeps working even if you later become disabled or incapacitated, which is usually why people set one up.

2. 2

   North Dakota sets no notary or witness rule. North Dakota Century Code Chapter 30.1-30 imposes no execution formality for a financial power of attorney. No statute requires a notary or witnesses to make it valid, and the Code names no disqualified signers. The document is valid when dated and signed.

3. 3

   Sign before a notary as the safe practice. Because the statute is silent, the North Dakota court system's self-help General Durable Power of Attorney form directs the principal to sign before a notary public or clerk of court, and notarization is required if the document will later be recorded for real property.

4. 4

   It is not durable unless you say so. North Dakota does not make a power of attorney durable by default. Under NDCC 30.1-30-01 the writing must contain express words that the agent's authority is not affected by your subsequent disability or incapacity; without that language, the authority ends when you become disabled or incapacitated.

5. 5

   North Dakota has no statutory short form. The Century Code publishes no statutory or safe-harbor power-of-attorney form. The North Dakota court system separately offers a fillable General Durable Power of Attorney self-help form, which is a court convenience form only, not a statutory form.

6. 6

   Gifts are the one special power the Code addresses. Under NDCC 30.1-30-06 an agent under a broadly worded power of attorney may make gifts of your property unless you authorize or limit that authority by express words. Other special acts, such as changing beneficiaries or amending a trust, are governed by common law, so state them clearly if you intend to grant them.

7. 7

   Real-property use means acknowledgment and recording. Recording is permissive under NDCC 47-19-01, but a power of attorney affecting real property must be acknowledged before it can be recorded under NDCC 47-19-03, and any later revocation of a recorded power must itself be acknowledged, certified, and recorded in the same office under NDCC 47-19-44.

North Dakota Requirements for Durable Power of Attorney

• No Statutory Notary or Witness Rule

  North Dakota Century Code Chapter 30.1-30 imposes no execution formality for a financial power of attorney. No statute requires a notary or witnesses to make it valid, and the Code names no disqualified signers. The document is valid when dated and signed.

• Sign Before a Notary as the Safe Practice

  Because the statute is silent, the North Dakota court system's self-help General Durable Power of Attorney form directs the principal to sign before a notary public or clerk of court. Notarization is also required if the document will be recorded for a real-property transaction, so signing before a notary is the safe approach.

• Durability Language Is Required

  North Dakota does not make a power of attorney durable by default. Under NDCC 30.1-30-01 the writing must contain express words that the agent's authority is not affected by your subsequent disability or incapacity; otherwise the authority ends when you become disabled or incapacitated.

• Springing Effective Date (Optional)

  If you want the power of attorney to take effect only on a future event such as your incapacity, NDCC 30.1-30-01 recognizes a springing power created with words that it becomes effective upon your disability or incapacity. The statute does not prescribe how that incapacity is determined.

• No Statutory Short Form

  North Dakota publishes no statutory or safe-harbor power-of-attorney form in the Century Code. The North Dakota court system separately offers a fillable General Durable Power of Attorney self-help form, which is a court convenience form only, not a statutory form.

• Acknowledge and Record for Real-Property Use

  Recording is permissive under NDCC 47-19-01, not required for validity. But a power of attorney affecting real property must be acknowledged before it can be recorded under NDCC 47-19-03, and any later revocation of a recorded power must itself be acknowledged, certified, and recorded in the same office under NDCC 47-19-44.

• Gifts Need Express Authority or Limits

  Gift-making is the one specific power the Century Code addresses. Under NDCC 30.1-30-06 an agent under a broadly worded power of attorney may make gifts of your property unless you, by express words, authorize or limit that authority. Other special acts, such as changing beneficiaries or amending a trust, are governed by common law.

• Revocation and Good-Faith Protection

  Under NDCC 30.1-30-04 an agent or third person who acts in good faith without actual knowledge of your death, disability, or incapacity is protected, so give written notice of any revocation. If the power was recorded for real property, the revocation must itself be acknowledged, certified, and recorded in the same office under NDCC 47-19-44.