Health Care Directive North Dakota: What It Covers and How to Complete One

Most people assume filling out a health care directive means printing a form and signing it. In North Dakota, a single misqualified witness makes the entire document legally void — and your family won't discover that until the emergency room needs it.

North Dakota is one of the states that combines a living will and a healthcare power of attorney into a single document under NDCC Chapter 23-06.5. That means one form handles two critical jobs: appointing someone to make medical decisions if you lose capacity, and spelling out your treatment preferences in writing.

What a North Dakota Health Care Directive Actually Does

The health care directive lets you accomplish two things in one legal instrument. First, you appoint a healthcare agent (sometimes called a proxy) who steps in when you can't speak for yourself. Second, you document binding instructions about life-prolonging treatments, artificial nutrition, organ donation, and end-of-life care.

The directive is a "springing" power by default. It stays dormant while you have capacity and only activates when your attending physician certifies in writing that you've lost decision-making ability. You can override this default by explicitly authorizing your agent to act even while you retain capacity.

One critical detail: North Dakota law absolutely prohibits medical aid-in-dying. Under NDCC § 12.1-16-04, assisted suicide is a felony. No instruction in your directive can authorize a physician to administer lethal substances.

Execution Requirements That Trip People Up

Here's where most DIY attempts fail. Under NDCC § 23-06.5-05, a valid health care directive must be:

• In writing, dated, and signed by the principal (or by someone else in your presence at your verbal direction if you're physically unable to sign)
• Verified by either a notary public or two witnesses who are at least 18

The witness restrictions are strict. Neither your notary nor your witnesses can be:

• Your designated healthcare agent or alternate
• Your spouse
• Anyone related by blood, marriage, or adoption
• Anyone who stands to inherit from your estate
• Anyone with a financial claim against your estate
• Anyone financially responsible for your medical care
• Your attending physician

If you use witnesses instead of a notary, at least one witness must not be a healthcare provider or employee of a provider currently treating you. Getting this wrong doesn't just create a technicality — it makes the entire document unenforceable.

Who Can Serve as Your Healthcare Agent

The restrictions on agents mirror some of the witness rules. Your active healthcare provider, their non-relative employees, your long-term care provider, and their non-relative employees are all barred from acting as your agent. In practice, most people name a spouse, adult child, or trusted friend — someone who understands your values and can handle pressure.

You should also name at least one alternate agent. If your primary agent is unavailable, incapacitated, or declines to serve, the alternate steps in without needing a court order.

What Happens If You Don't Have One

Without a directive, North Dakota defaults to a surrogate hierarchy under NDCC § 23-12-13 (updated by SB 2297, effective May 2025). The priority order runs: healthcare agent, court-appointed guardian, spouse, adult children, parents, adult siblings, grandparents, adult grandchildren, close friend, and finally an interdisciplinary team of three healthcare professionals.

Default surrogates have limits. They cannot consent to sterilization, abortion, psychosurgery, or mental health facility admission beyond 45 days. And if a higher-priority family member refuses treatment, a lower-priority relative cannot override that refusal.

Where to File Your Completed Directive

North Dakota operates a Health Care Directive Registry through the North Dakota Health Information Network (NDHIN). Registering your directive means any participating hospital can pull up your wishes electronically — critical if you're admitted unconscious to an ER in Fargo while your paper copy sits in a drawer in Williston.

For Bakken mineral rights owners and agricultural families, a health care directive also protects against operational freezes. Without a designated agent, energy companies will freeze royalty payments and farm management decisions stall until a court appoints a guardian.

Getting It Right the First Time

The North Dakota Court System Self-Help Center explicitly states it does not provide health care directive forms or instructions. Hospital forms cover basic clinical preferences but skip asset coordination, mineral rights implications, and post-execution steps.

The North Dakota Advance Directive & Living Will Kit walks through every execution requirement, includes a witness qualification checklist, and covers how your directive coordinates with TOD deeds, POLST orders, and the NDHIN registry — so the document actually works when your family needs it.

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