Medical power of attorney in North Dakota: how to sign one
The short answer
In North Dakota, you name a health care agent in a health care directive. You sign it before a notary or two qualified adult witnesses, and relatives and heirs can't serve as either. If you name nobody, the law turns to your spouse, adult children, parents, siblings, grandparents, grandchildren, then a close friend.
The question under every medical power of attorney is a simple one. If you can't speak for yourself, who talks to the doctor?
North Dakota folds the answer into one document, the "health care directive." This page covers how to sign one, who can't be your witness or notary, where your end-of-life wishes go, and what happens if you name nobody. It is part of our state guides to estate planning. For the basics of the role, see what a medical power of attorney is.
What is a health care directive in North Dakota?
It is a written document that can do two things, or just one of them (N.D.C.C. chapter 23-06.5):
- Name an agent, the person who makes health care decisions for you if you can't. This is North Dakota's version of a medical power of attorney.
- Give health care instructions, your wishes about treatment, including at the end of life.
Every state lets you name someone to make medical decisions if you can't, though the names and signing rules differ. In North Dakota, both pieces live in the same document.
How do I sign a health care directive in North Dakota?
The directive must be in writing, dated, state your name, and be signed by you. If you can't sign, someone else may sign at your express direction and in your presence. Then it needs one of these:
- A notary, or
- Two witnesses, each 18 or older.
If you use witnesses, at least one must not be a health care or long-term care provider giving you direct care, or an employee of one, on the day you sign.
That is different from North Dakota's financial power of attorney, which has no statutory signing rule at all. Our North Dakota power of attorney guide covers that document.
You don't need a lawyer's form. North Dakota has an optional statutory form, and other forms that meet the rules are valid too.
Who can't be my witness or notary?
North Dakota's list is broad, and it applies to the notary and the witnesses alike:
| Person | Can be the notary or a witness? |
|---|---|
| The person you name as your agent | No |
| Your spouse | No |
| Anyone related to you by blood, marriage or adoption | No |
| Your heirs, or anyone named in your will or a deed | No |
| Anyone your estate would owe money to | No |
| Anyone directly responsible for paying your medical care | No |
| Your attending physician | No |
| A friend or neighbor who is none of the above | Yes |
A notary who works for your care provider may still notarize. For most people the easiest path is a notary at your bank who isn't related to you.
There is also a rule about who can be your agent. Your health care provider or long-term care provider, and their employees who aren't your relatives, can't serve.
When does it take effect, and what can my agent decide?
The directive takes effect when your attending physician, psychiatrist or psychologist certifies in writing that you lack capacity. You can choose instead to let your agent act sooner.
Your agent makes the health care decisions you would make if you could, within the limits you set. Your agent is a fiduciary: legally required to act in your interest and follow what you wrote. In day-to-day terms, that usually means talking with your doctors, reading your chart, and agreeing to or declining a test, a surgery or a new medicine in light of your wishes.
Do I need a living will too?
Not a separate one. North Dakota repealed its old living will law in 2005 (N.D.C.C. chapter 23-06.4 repeal note). Your end-of-life wishes now go in the health care instructions section of your directive, signed the same way.
If you signed a living will or health care power of attorney before August 1, 2005, and it followed the law at the time, it is still valid. It may still be worth reviewing, since your wishes and your choice of agent may have changed.
Our post on health care power of attorney vs living will explains how the two ideas work together, and treatment preferences helps you think through what to write.
Who decides if I haven't named anyone?
North Dakota law picks for you. Most states have a list like this, usually starting with a spouse, then adult children, parents and siblings. North Dakota's runs longer than most, and almost every person on it must have kept "significant contact" with you (N.D.C.C. 23-12-13).
| Order | Who can decide |
|---|---|
| 1 | Your health care agent, under a health care directive |
| 2 | A court-appointed guardian or custodian |
| 3 | Your spouse, if they have kept significant contact |
| 4 | An adult child who has kept significant contact |
| 5 | A parent, including a stepparent who has kept significant contact |
| 6 | An adult brother or sister who has kept significant contact |
| 7 | A grandparent who has kept significant contact |
| 8 | An adult grandchild who has kept significant contact |
| 9 | A close relative or friend, 18 or older, who has kept significant contact |
| 10 | A team of at least three health care professionals, while the provider keeps looking for someone higher on the list |
So yes, a close friend can decide, but only ninth. The provider must try the highest group first, and someone lower on the list can't consent if someone higher has refused. Whoever decides must choose as you would, or, if that can't be known, in your best interests.
Notice two things. Your named agent ranks above even a court-appointed guardian. And without a directive, a friend who sees you every week sits behind your siblings and adult grandchildren, if they have kept significant contact.
Our page on who decides for you walks through how this plays out, and the 50-state guide to default decision-makers compares North Dakota with other states.
Here is a typical case, a composite. Joyce is 71, divorced, and lives in Fargo. Her daughter lives in Seattle and calls on Sundays. Her friend Marlene, from church, knows exactly what Joyce would want. Joyce names Marlene as her health care agent and her daughter as backup.
How do I choose my agent?
Once the signing is planned, the practical questions matter most. Is the person willing? Can they get to the hospital in a January storm? Will they follow your wishes even when they'd choose differently?
A short checklist:
- They know what you want, because you've told them.
- They can stay calm in a hospital hallway and ask questions.
- They live close enough, or can travel when needed.
- You've named a backup in case they can't.
Our post on how to choose a medical power of attorney has more questions to ask.
Some people would like a professional standing by, first or behind a friend. A Kinly membership includes a medical power of attorney written for your state, and Trella Trust Company can be named in the role, first or as the backup to someone you choose.
Once your health papers are done, our North Dakota probate guide covers what happens to your home and savings later.
Common questions
Does a health care directive need to be notarized in North Dakota?
Not necessarily. It must be notarized or signed before two adult witnesses. At least one witness can't be someone giving you direct care, or their employee.
Can a family member witness my North Dakota health care directive?
No. Your spouse, anyone related to you by blood, marriage or adoption, and your heirs can't serve as a witness or as the notary.
Who makes medical decisions in North Dakota if there's no directive?
A guardian first, then your spouse, adult child, parent, sibling, grandparent and adult grandchild, each only if they have kept significant contact with you. A close relative or friend with significant contact comes ninth.
Does North Dakota have a separate living will?
No. Since 2005, end-of-life wishes go in the health care instructions part of a health care directive. Living wills signed before August 1, 2005 that followed the law then are still valid.
Sources
This page is general information, not legal or financial advice. Laws vary by state.