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An advance directive in North Dakota is a written legal document that outlines an individual's (principal’s) medical preferences and values regarding health care in the event of incapacitation, often known as a “living will”.
This document can also include a durable power of attorney for health care, which designates an agent—typically a trusted person, spouse, or relative—to make medical decisions on the principal's behalf.
Creating an advance directive should be essential to everyone's advance care planning, as it ensures that health care wishes are communicated and respected.
Signing Requirements for North Dakota Advance Health Care Directive
As stated in Section 23-06.5-04 of Century Code North Dakota, the following signing requirements make an advance directive form valid and legally enforceable:
Signing Requirements for North Dakota
The directive must be in writing and dated.
It must clearly state the principal's name.
The directive must be executed by the principal, who must be of sound mind and able to do so. It can be executed through the principal's signature or by someone authorized by the principal to sign it on their behalf.
The principal's signature (or the authorized person's signature) must be verified either by a notary public or by a minimum of two witnesses who are at least 18 years old.
The document should include either health care instructions, a power of attorney for health care (medical power of attorney), or both.
Additionally, not everyone can be a witness, as there are restrictions put in place regarding this step of the process. Here’s who cannot serve as one:
Healthcare providers or employees of health care or long-term care providers involved in the principal’s care
The principal's spouse, heir, or anyone related to the principal by blood, marriage, or adoption
Anyone entitled to part of the principal's estate upon their death or who has claims against the principal's estate
The principal's attending physician
North Dakota Advance Health Care Directive Revocation & Changing
North Dakota advance directive becomes effective when a doctor certifies that the person can no longer make their own health care decisions. This certification is added to their medical record, and the directive stays in effect until they’re able to make decisions again.
According to Section 23-06.5-07, an advance directive for health care can be revoked in several ways, including:
Directive Revocation and Changes
When the principal informs their agent or health care provider about it, either verbally, in writing, or by any clear act showing intent to revoke the document
When a new advance directive for health care is created, as it automatically replaces the previous one
If a spouse is named as the health care agent, a divorce will cancel that spouse’s role as agent unless stated otherwise in the directive
A health care provider must immediately document revocation in the medical record and notify the agent, attending physician, and any staff involved in the principal’s care about it.
Additional Legal Considerations for North Dakota Advance Health Care Directive
According to Section 23-06.5-06, the agent can step down from their responsibilities at any time by notifying the principal or attending physician. While the principal is still physically competent and of sound mind, the agent can withdraw simply by informing the principal about it. If the principal becomes incapacitated, the agent can withdraw by informing the attending physician, who must record the agent’s withdrawal in the principal’s medical record.
As stated in Section 23-06.5-09, health care providers and their staff must follow the agent’s decisions or instructions in the directive as long as they comply with state law and the directive itself.
If a provider cannot follow a decision due to personal or ethical reasons, they must arrange for the principal’s care to be transferred to a provider who can, and they must continue providing care to the principal until the transfer happens.
How to Choose a Health Care Agent in North Dakota
To choose a North Dakota health care proxy (agent), you should find someone reliable who understands your wishes and is comfortable advocating for your choices. Adults who are at least 18 years old and of sound mind can serve as your agent, but your health care provider or facility staff directly responsible for your care cannot.
To make the right choice, it’s also helpful to discuss your preferences with the person you choose to ensure they’re fully prepared to act in your best interest and make decisions that reflect your values.
An individual can access a North Dakota Health Care Record Registry and register or revoke their health care advance directive. Registration is optional and does not impact the validity of the directive if left unregistered.
What Happens if You Don’t Have an Advance Directive in North Dakota?
Without an advance directive, there will be no clear guidelines for your medical preferences. In such cases, your loved ones will need to make decisions based on their judgment or what is commonly recommended for your medical condition, which may not reflect your actual wishes.