North Dakota Living Will Requirements

Introduction

Key Things to Know

1. 1

   North Dakota is one of the states whose health care directive law contains a real pregnancy clause. Health care must keep being provided to you while pregnant, even if your directive says otherwise, unless your attending physician and an obstetrician who examined you both certify that continuing treatment will not let the fetus develop to a live birth, will be physically harmful or unreasonably painful to you, or will prolong severe pain that medication cannot control.

2. 2

   A living will is not a last will and testament. A living will governs medical care while you are alive but unable to communicate; a last will and testament governs who inherits your property after you die. Most people preparing one eventually want the other too.

3. 3

   North Dakota's own statute never uses the phrase living will; it defines only a health care directive. Your living will is the health care instruction half of that one document, your written statement of which treatments you want or want withheld if you cannot speak for yourself. It does not name who decides for you; that is a separate function within the same directive.

4. 4

   Your written treatment instructions do not activate the moment you sign them. They take effect only once your attending physician, a psychiatrist, or a psychologist certifies in writing that you lack capacity to make health care decisions, and they stop applying automatically once you regain capacity. This same certification is also what starts any named agent's authority, if you have one.

5. 5

   North Dakota's optional form does not ask you to check a box specifically for artificial nutrition and hydration. You write your wishes in your own words across several scenarios, and if you leave nutrition and hydration unaddressed, your physician may withhold it only if it cannot be physically assimilated by you or would be harmful or unreasonably painful.

6. 6

   Because North Dakota bundles the living will and the health care power of attorney into one form, you can complete only the health care instruction pages and leave the agent-designation pages blank. Your written wishes still bind your physician on their own, with or without a named agent.

7. 7

   Registering your directive with North Dakota's health care record registry, run by the state's information technology department rather than the Secretary of State, is optional. It is not required for your directive to be valid.

North Dakota Requirements for Living Will

• Legal Authority for Living Will (North Dakota Century Code Section 23-06.5)

  North Dakota does not have a legally separate living-will statute. Chapter 23-06.5, titled Health Care Directives, creates one combined instrument, the health care directive, defined as a written instrument that includes one or more health care instructions, a power of attorney for health care, or both.

• Capacity and Activation Requirement (North Dakota Century Code Section 23-06.5-03)

  The chapter only requires the principal be an adult with capacity to execute the directive; North Dakota's general civil code (Section 14-10-02) separately fixes adult status at 18 and older. The entire directive, including any agent's authority, only takes effect once your attending physician, a psychiatrist, or a psychologist certifies in writing, in your medical record, that you lack capacity to make health care decisions, and it ceases automatically once you are determined to have recovered capacity.

• Execution Requirements (North Dakota Century Code Section 23-06.5-05)

  A health care directive must be in writing, dated, state the principal's name, be signed by a principal with capacity (or by another adult at the principal's direction), and have that signature verified by either a notary public or at least two subscribing witnesses who are 18 or older. Unusually, the notary may be an employee of the principal's own health care or long term care provider, a permission most other states do not extend for that role.

• Witness Restrictions (North Dakota Century Code Section 23-06.5-05)

  The witness and notary disqualification list under Section 23-06.5-05 is: 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, a person with a claim against the estate, a person financially responsible for the principal's medical care, or the attending physician. Separately, at least one of the two witnesses (not the notary) must not be an employee of a health care or long term care provider giving the principal direct care.

• Revocation Provisions (North Dakota Century Code Section 23-06.5-07)

  A directive may be revoked by notifying the agent or a health care or long term care provider orally, in writing, or by any other act evidencing specific intent to revoke, or by executing a subsequent directive. If the principal's spouse is the named agent, a subsequent divorce automatically revokes that spousal appointment unless the directive states otherwise.

• Pregnancy Limitations (North Dakota Century Code Section 23-06.5-09)

  Requires certification from both the attending physician and an obstetrician that continuing treatment will not permit the fetus to develop to live birth, will be physically harmful or unreasonably painful to the principal, or will prolong severe pain that medication cannot relieve.

• Health Care Provider Compliance (North Dakota Century Code Section 23-06.5-09)

  A provider must follow the agent's decisions and health care instructions consistent with the chapter and the directive, but may decline for reasons of conscience or other conflict, or where compliance would be contrary to reasonable medical standards.

• Transfer of Care Requirement (North Dakota Century Code Sections 23-06.5-09 and 23-06.5-12)

  Under Section 23-06.5-09(2), a provider declining to comply for reasons of conscience must take all reasonable steps to transfer the principal's care to a provider willing to honor the directive, and must keep providing care until the transfer happens. Under Section 23-06.5-12(3), a provider who overrides the agent's decision on reasonable-medical-standards grounds is protected from liability only if it promptly notifies the agent, documents the notification, and arranges a transfer to a willing provider.

• Out-of-State Recognition (North Dakota Century Code Section 23-06.5-11)

  This chapter 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.

• Effect on Insurance (North Dakota Century Code Section 23-06.5-13)

  Executing a health care directive does not affect the sale, procurement, or issuance of a life insurance or annuity policy, and a policy is not impaired or invalidated because life-sustaining treatment was withheld or withdrawn under a directive.

• Prohibition Against Mercy Killing (North Dakota Century Code Section 23-06.5-01)

  The chapter does not condone, authorize, or approve mercy killing, or permit an affirmative or deliberate act or omission to end life, other than allowing the natural process of dying.

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(f))

  Federal law requires Medicare- and Medicaid-participating hospitals, nursing homes, and other facilities to inform patients in writing of their right under North Dakota law to make a health care directive, including stating their own treatment wishes.

• HIPAA Considerations (45 CFR Section 164.502(g))

  Federal HIPAA regulations governing disclosure of protected health information to a patient's personal representative, directly relevant to how a health care agent under the agent-designation portion of a North Dakota directive can access medical records once that authority is in effect.

• Designation of Health Care Agent (North Dakota Century Code Section 23-06.5-03)

  Section 23-06.5-03 also lets you name a health care agent inside the same health care directive. That is a separate function from the health care instruction covered on this page: naming an agent gives someone else decision-making authority once your incapacity is certified, rather than stating your own wishes directly. For full agent-designation guidance, see North Dakota Healthcare Power of Attorney.

• Alternate Agent Provisions (North Dakota Century Code Section 23-06.5-05.1)

  This provision allows for naming a successor agent. For full guidance, see North Dakota Healthcare Power of Attorney.

• Specific Medical Treatments (North Dakota Century Code Section 23-06.5-17)

  The form's Part II introduction gives examples including artificial breathing by machine, artificial feeding or fluids through tubes, attempts to restart a stopped heart, surgeries, dialysis, antibiotics, and blood transfusions, then asks you to state your wishes in your own words across four scenarios rather than through a checklist of named treatments.

• Organ Donation Provisions (North Dakota Century Code Section 23-06.6)

  North Dakota's Uniform Anatomical Gift Act provisions let you authorize organ and tissue donation, and North Dakota's own optional Section 23-06.5-17 statutory form includes a dedicated Part III organ-donation section alongside its agent-designation and health care instruction parts, cross-referenced directly at Section 23-06.5-05.1(5).

• Religious or Moral Convictions (North Dakota Century Code Section 23-06.5-03)

  An agent must make decisions in accordance with the agent's knowledge of the principal's wishes and religious or moral beliefs as stated orally or in the directive (Section 23-06.5-03(2)(a)), and the optional form's Part II(A) health care instruction section separately invites the principal to write in spiritual or religious beliefs and traditions directly.

• Artificial Nutrition and Hydration Default Rule (North Dakota Century Code Section 23-06.5-09(6))

  If your directive addresses nutrition and hydration, that direction controls. If it is silent, your physician is not required to withhold, withdraw, or administer artificial nutrition or hydration on that basis alone, and may withhold or withdraw it only if the physician determines that administering it is medically inappropriate because it cannot be physically assimilated by you or would be physically harmful or cause you unreasonable physical pain.

• Health Care Record Registry (North Dakota Century Code Section 23-06.5-19)

  North Dakota's information technology department, not the Secretary of State, may establish and maintain a voluntary health care record registry where you or your agent can file your directive or a revocation for a reasonable fee. Registry information is confidential and releasable only to you, your agent, or your health care provider. Failing to register, or to notify the registry of a revocation, does not affect the validity of your directive or its revocation.