North Dakota Living Will Requirements
North Dakota activates the entire health care directive, both your treatment instructions and any agent's authority, the moment a single professional, your attending physician, a psychiatrist, or a psychologist, certifies in writing that you lack capacity to make health care decisions, rather than waiting for a named condition like a terminal illness or permanent unconsciousness to be checked off a list.
Introduction
North Dakota activates the entire health care directive, both your treatment instructions and any agent's authority, the moment a single professional, your attending physician, a psychiatrist, or a psychologist, certifies in writing that you lack capacity to make health care decisions, rather than waiting for a named condition like a terminal illness or permanent unconsciousness to be checked off a list. North Dakota's version of what's commonly called a living will is your own written statement of the medical treatment you want or want withheld once you can no longer decide for yourself. North Dakota does not treat it as separate from the rest of your advance care planning: Century Code Chapter 23-06.5 folds this treatment-wishes declaration together with the power to name a health care agent into a single instrument, the health care directive, and the statute itself never uses the phrase living will. This guide covers the treatment-wishes side of that directive: how to phrase your wishes, how to execute it validly, and the pregnancy rule and revocation mechanics that follow below. Naming someone to carry out decisions you have not spelled out is a separate task the North Dakota Healthcare Power of Attorney page walks through in its own right.
Key Things to Know
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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.
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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.
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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.
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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.
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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.
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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.
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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.
Key decisions before you file
Before you file a Living Will in North Dakota, a few decisions shape the document: which option to choose and what each one means. The Living Will guide walks through them.
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North Dakota Requirements for Living Will
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
This provision allows for naming a successor agent. For full guidance, see North Dakota Healthcare Power of Attorney.
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.
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).
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.
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.
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.
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Check my Living WillFrequently Asked Questions
In North Dakota, a living will is the health care instruction half of the health care directive, the single document Century Code Chapter 23-06.5 uses to cover end-of-life medical decisions. It lets you write down, in your own words using the optional Section 23-06.5-17 form's values and scenario prompts, whether you want treatment continued or withheld once you become unable to communicate. There is no separate North Dakota statute called a living will. The term describes this part of the combined directive, not a stand-alone filing.
A living will is where you decide directly: you write down, in your own words, what treatment you want or refuse. A health care power of attorney is where you name someone else, your agent, to decide for you instead. North Dakota combines both into one document, but you can complete either part alone; see North Dakota Healthcare Power of Attorney for the agent-designation side.
These control completely different things at completely different times. A living will, part of your North Dakota health care directive, states your medical treatment wishes while you are alive but unable to communicate. A last will and testament says who inherits your property after you die, and only takes legal effect at death. Having one does not replace the other. Most people executing a health care directive for end-of-life care planning also want a separate North Dakota Last Will and Testament for their estate.
Not simply when you sign it. Under Section 23-06.5-03, your written treatment instructions become effective only 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 they stop applying again automatically once you are determined to have regained capacity. This same certification is what activates any named agent's authority too, since both halves of the directive share one activation trigger.
Section 23-06.5-09(5) requires health care to keep being provided to a pregnant principal, notwithstanding a contrary directive, unless the attending physician and an obstetrician who examined you both certify that treatment will not permit the fetus to develop to live birth, will be physically harmful or unreasonably painful to you, or will prolong severe pain that cannot be relieved with medication.
No, and North Dakota's form does not use initialing at all for this. The optional Section 23-06.5-17 form asks you to write your wishes in your own words across several scenarios, mentioning tube feeding only as one example among others. If you leave nutrition and hydration unaddressed, Section 23-06.5-09(6) lets your physician withhold or withdraw it only if it cannot be physically assimilated by you or would be physically harmful or cause you unreasonable pain.
No. North Dakota's information technology department runs a voluntary health care record registry under Section 23-06.5-19, but that same section says failing to register does not affect your directive's validity. Your directive works once it is properly signed and verified, registry or not.
Yes. Section 23-06.5-11 does not limit the enforceability of a health care directive or similar instrument validly executed in another state or jurisdiction under that jurisdiction's law. A North Dakota provider can rely on it on that basis.