North Dakota Healthcare Power of Attorney Requirements
Most states make you wait for a doctor's incapacity finding before your health care agent gains any authority.
Introduction
Most states make you wait for a doctor's incapacity finding before your health care agent gains any authority. North Dakota lets you bypass that default: inside the same document that names your agent, you can authorize the agent to start deciding for you right away, on conditions you set, instead of waiting for a certified incapacity determination. That document is North Dakota's Health Care Directive, created under North Dakota Century Code Chapter 23-06.5, the state's single combined instrument for appointing a health care agent and, if you choose, recording your own treatment instructions; North Dakota has no separate Medical Power of Attorney form. This page covers only the agent-designation, or power of attorney, portion of that directive. By default, though, your agent's authority does not begin until your attending physician, psychiatrist, or psychologist certifies in writing, in your medical record, that you lack capacity to make your own health care decisions, and that authority ends automatically once you recover capacity. The immediate-authority option above is an exception you must affirmatively elect in the directive itself, not the default rule. North Dakota gives you two ways to make the document legally valid: sign before a notary public, or sign in front of two qualified witnesses. North Dakota also runs a voluntary Health Care Record Registry, maintained through the state's information technology department and operated in practice through the North Dakota Health Information Network, where you can file your directive online, though filing is optional and does not affect its validity.
Key Things to Know
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North Dakota is one of the few states that lets your health care agent start acting immediately, before any doctor certifies you have lost capacity, if you say so in writing. This Health Care Power of Attorney is the agent-designation portion of North Dakota's combined Health Care Directive, and it lets you, the principal, name a trusted adult, your agent, to make health care decisions for you once you become unable to make them yourself, or sooner if you have opted in.
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Your agent's authority does not start the moment you sign. By default it begins only after your attending physician, psychiatrist, or psychologist certifies in writing, in your medical record, that you lack capacity to decide for yourself (North Dakota Century Code Section 23-06.5-03(3)).
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North Dakota lets you override that default: you may authorize your agent to make decisions for you even while you still have capacity, by saying so directly in your directive (Section 23-06.5-03(4)).
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Unless you limit it, your agent can make any health care decision you could make yourself, including consenting to, refusing, or withdrawing treatment, choosing your providers, and reviewing your medical records.
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Your agent cannot be your health care provider or your long-term care services provider, and cannot be a nonrelative employee of either (Section 23-06.5-04).
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You can sign before a notary public, who may be an employee of a health care or long-term care provider caring for you, or sign in front of two witnesses at least 18 years old, at least one of whom must not be a health care or long-term care employee providing you direct care.
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You can revoke the document at any time by telling your agent or a health care provider, orally or in writing, or by signing a later Health Care Directive. No witness needs to be present for an oral revocation.
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North Dakota runs a voluntary Health Care Record Registry through the state's information technology department, operated in practice by the North Dakota Health Information Network, but filing your directive there is optional and does not affect its validity.
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This power of attorney is separate from North Dakota's Durable Power of Attorney (North Dakota Century Code Chapter 30.1-30), which covers property and financial decisions, not health care.
Key decisions before you file
Before you file a Healthcare Power of Attorney in North Dakota, a few decisions shape the document: which option to choose and what each one means. The Healthcare Power of Attorney guide walks through them.
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North Dakota Requirements for Healthcare Power of Attorney
The Health Care Directive, including its power of attorney for health care component, must comply with North Dakota Century Code Chapter 23-06.5, which governs health care directives, agent designation, execution, revocation, and the state's health care record registry.
The principal may include, within the Health Care Directive, a power of attorney appointing an agent to make health care decisions when the principal lacks capacity to do so, unless the directive specifies otherwise (Section 23-06.5-03(1)). North Dakota has no separate Medical Power of Attorney document; the agent designation lives inside the combined directive.
North Dakota law suggests including one or more alternate agents to act if the named agent is not reasonably available (Section 23-06.5-05.1(1)). North Dakota's own optional statutory form (Section 23-06.5-17) includes a blank for exactly one alternate agent.
By default, the Health Care Directive and the agent's authority are in effect only once the principal's attending physician, psychiatrist, or psychologist certifies in writing, filed in the principal's medical record, that the principal lacks capacity, and that authority ends automatically once capacity is recovered (Section 23-06.5-03(3)). Unlike some other legal documents, a Health Care Directive is automatically effective during incapacity without needing special 'durability' language. Separately, North Dakota lets the principal affirmatively authorize the agent to act even while the principal still has capacity (Section 23-06.5-03(4)), an opt-in that must be stated in the directive itself.
Once in effect, the agent has authority to make any and all health care decisions the principal could make (Section 23-06.5-03(1)). After consulting the attending physician and other providers, the agent must decide according to the principal's known wishes, including religious or moral beliefs, or, if unknown, the agent's assessment of the principal's best interest (Section 23-06.5-03(2)).
Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the Health Care Directive is in effect.
To be legally sufficient, the Health Care Directive must be in writing, dated, state the principal's name, be signed by the principal or by another person the principal authorizes to sign on the principal's behalf, and have that signature verified either by a notary public or by at least two subscribing witnesses who are at least eighteen years old (Section 23-06.5-05(1), (2)). A notary used for this purpose may be an employee of a health care or long-term care provider giving the principal direct care, but at least one witness must not be. If the principal is physically unable to sign, another person may write the principal's name on the directive in the principal's presence and at the principal's express direction.
At least one of the two witnesses used, not necessarily both, must not be a health care or long-term care provider giving the principal direct care, or an employee of one, as of the date of execution; a notary, by contrast, may be such an employee. Separately, no notary or witness at all may be, at the time of execution, the named agent, the principal's spouse or heir, a person related to the principal by blood, marriage, or adoption, a person entitled to any part of the principal's estate under a will or deed or by operation of law, a person with a claim against the principal's estate, a person directly financially responsible for the principal's medical care, or the principal's attending physician.
The principal may revoke a Health Care Directive at any time by oral or written notification to the agent or to a health care or long-term care provider, by any other act evidencing a specific intent to revoke, with no witness-presence requirement for oral revocation, or by executing a subsequent Health Care Directive (Section 23-06.5-07(1)). A provider informed of a revocation must immediately record it in the principal's medical record and notify the agent, attending physician, and care staff (Section 23-06.5-07(2)). If the principal's spouse is the agent, divorce automatically revokes that appointment unless the directive states otherwise (Section 23-06.5-07(3)).
After consulting with the attending physician and other providers, the agent must make health care decisions according to the agent's knowledge of the principal's wishes, including the principal's religious or moral beliefs as stated orally or in the directive, or, if those wishes are unknown, according to the agent's assessment of the principal's best interest, considering the principal's personal values to the extent known (Section 23-06.5-03(2)).
A health care decision is statutorily defined to include directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care (Section 23-06.5-02(4)(c)). Once the directive is in effect, the agent has authority to make any such decision the principal could make, including life-sustaining treatment decisions, unless the principal limits that authority in the directive (Section 23-06.5-03(1)).
North Dakota law instead imposes a specific, mandatory limit: nothing in Chapter 23-06.5 permits an agent to consent to the principal's admission to a mental health facility or state institution for more than forty-five days without a mental health proceeding or other court order, or to psychosurgery, abortion, or sterilization, unless the procedure is first approved by court order (Section 23-06.5-03(6)).
The Health Care Directive may include a document of gift for an anatomical gift, or an amendment to, revocation of, or refusal to make one, as set forth in North Dakota's separate anatomical gift chapter, referenced at Section 23-06.5-05.1(5). North Dakota's own optional statutory form places this in a separate anatomical-gift section, apart from the agent-designation and health care instruction parts (Section 23-06.5-17).
Notwithstanding a contrary direction in a Health Care Directive, health care must be provided to a pregnant principal unless, to a reasonable degree of medical certainty as certified in the principal's medical record by the attending physician and an obstetrician who examined the principal, the treatment will not maintain the principal in a way that permits continuing development and live birth, or will be physically harmful or unreasonably and untreatably painful to the principal.
A person acting as agent under a Health Care Directive, and a health care or long-term care provider acting under the agent's direction or the directive's terms, is not subject to criminal or civil liability for a health care decision made in good faith under Chapter 23-06.5 (Section 23-06.5-12).
Chapter 23-06.5 does not limit the enforceability of a health care directive or similar instrument executed in another state or jurisdiction in compliance with that jurisdiction's law.
Facilities that participate in Medicare and Medicaid must comply with federal advance-directive and patient self-determination requirements, including recognizing a validly executed Health Care Directive.
Participating facilities must inform patients of their rights under North Dakota law to make advance directives, including a Health Care Directive with a power of attorney for health care, consistent with the federal Patient Self-Determination Act.
In making health care decisions, the agent must act in accordance with the agent's knowledge of the principal's wishes, including the principal's religious or moral beliefs, as stated orally or contained in the Health Care Directive (Section 23-06.5-03(2)(a)). North Dakota's suggested-content list and optional statutory form also let the principal record spiritual or religious beliefs and traditions directly.
Unless a court determines otherwise, the appointment of an agent under a Health Care Directive takes precedence over any authority to make medical decisions granted to a guardian appointed under Chapter 30.1-28 (Section 23-06.5-13(1)). The directive may also state any limits on nominating the agent as guardian under Chapter 30.1-28 (Section 23-06.5-05.1(4)).
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Check my Healthcare Power of AttorneyFrequently Asked Questions
A Health Care Power of Attorney in North Dakota is the agent-designation portion of the state's combined Health Care Directive, created under North Dakota Century Code Chapter 23-06.5. It lets you name a trusted adult, your agent, to make health care decisions for you, such as consenting to or refusing treatment, once your attending physician, psychiatrist, or psychologist certifies in writing that you lack the capacity to decide for yourself.
A Health Care Power of Attorney in North Dakota covers only health care decisions and is part of the state's Health Care Directive under Chapter 23-06.5. North Dakota's Durable Power of Attorney, governed by the separate Uniform Durable Power of Attorney Act (Chapter 30.1-30), covers property and financial matters instead and has no health care authority. The two also work differently. The Durable Power of Attorney becomes durable only if the document contains specific words showing it survives your later disability, a choice you make at signing, and that Act sets no witness or notary requirement of its own. The Health Care Directive, by contrast, always requires notarization or two witnesses, and by default waits for a certified incapacity determination unless you specifically authorize your agent to act immediately.
No. North Dakota law requires either a notary public or at least two subscribing witnesses who are at least 18 years old, not both. If you use a notary, that person may be an employee of a health care or long-term care provider caring for you. If you use witnesses, at least one of the two must not be a health care or long-term care provider giving you direct care, or an employee of one (North Dakota Century Code Section 23-06.5-05).
No. North Dakota law bars a person from acting as your agent while serving as your health care provider or your long-term care services provider, and it also bars a nonrelative employee of either provider from serving as your agent. A relative who works for your provider is not barred (Section 23-06.5-04).
Yes. North Dakota's information technology department may maintain a Health Care Record Registry, operated in practice through the North Dakota Health Information Network, where you or your agent can file your directive online for a fee. Filing is optional, and not registering does not affect your directive's validity (Section 23-06.5-19).
You can revoke it at any time by telling your agent, or a health care or long-term care provider, that you are revoking it, orally or in writing, or by any other act that clearly shows you intend to revoke it, or by signing a later Health Care Directive. North Dakota law does not require a witness to be present for an oral revocation (Section 23-06.5-07).
Only if you say so. By default, your agent's authority begins only after your attending physician, psychiatrist, or psychologist certifies in writing that you lack capacity. North Dakota law lets you override that default and authorize your agent to make health care decisions for you even while you still have capacity, under whatever conditions you set in the document (Section 23-06.5-03(4)).
If your spouse is named as your health care agent, divorce automatically revokes that appointment, unless your directive states otherwise (Section 23-06.5-07(3)).