North Dakota Health Care Directive Form: Execution Rules and Requirements

A health care directive in North Dakota isn't just a form you sign — it's a legal instrument with strict execution requirements that will void the document if you get them wrong. Unlike a financial power of attorney, which has almost no formal execution requirements under North Dakota law, a health care directive must follow specific notary or witness verification rules under NDCC Chapter 23-06.5.

Getting the form right matters less than getting the execution right.

What a North Dakota Health Care Directive Covers

Under NDCC Chapter 23-06.5, a health care directive serves two distinct functions:

Part I — Healthcare Agent Appointment. You designate someone to make medical decisions on your behalf if you become unable to communicate your own wishes. This includes decisions about treatments, procedures, hospitalization, and facility transfers.

Part II — Treatment Instructions. You specify your preferences for life-prolonging treatments, including the administration or withholding of artificially administered nutrition and hydration. Under North Dakota law, a healthcare provider must administer nutrition and hydration unless you have explicitly stated in writing that you want them withheld under specific circumstances.

Both parts work together, but you can complete either independently. If you only appoint an agent without specifying treatment preferences, the agent makes decisions based on their knowledge of your values.

Execution Requirements: Notary or Two Witnesses

Your health care directive must be in writing, dated, and signed. Then you need one of two verification methods:

Option 1: Notary public. A single notarization completes the execution.

Option 2: Two subscribing witnesses. Both witnesses must be at least 18 years old, and at least one witness cannot be a healthcare provider or an employee of a provider currently delivering direct care to you.

Who Cannot Serve as a Witness or Notary

NDCC § 23-06.5-05 disqualifies a long list of people from acting as a notary or witness for your health care directive. At the time of execution, neither the notary nor any witness can be:

• Your designated healthcare agent or alternate agent
• Your spouse
• Anyone related to you by blood, marriage, or adoption
• Any heir entitled to inherit from your estate under a will or intestate succession
• Any creditor with an active financial claim against your estate
• Anyone directly financially responsible for your medical care
• Your attending physician

These disqualifications exist to prevent conflicts of interest. A family member who stands to inherit has a financial interest in your medical decisions. A healthcare provider who is treating you has a professional conflict.

What Your Healthcare Agent Cannot Do

Even with a valid health care directive, your agent's authority has statutory limits:

Mental health placement. Your agent cannot consent to admission to a mental health facility or state institution for more than 45 days without a formal judicial proceeding or court order.

Psychosurgery, abortion, or sterilization. Your agent cannot consent to any of these without prior court approval.

Overriding your expressed wishes. If you have capacity and can communicate, your own decisions override your agent's authority. The directive only activates when you cannot speak for yourself.

When a Provider Refuses to Honor Your Directive

Under NDCC § 23-06.5-12, if your attending physician or healthcare provider is unwilling to follow your directive or your agent's decisions, they must:

1. Immediately notify your healthcare agent of their non-compliance
2. Document the refusal and their reasons in your medical record
3. Take all reasonable steps to transfer your care to a provider who will honor the directive
4. Continue providing supportive care until the transfer is completed

This isn't optional — it's a statutory obligation. A provider cannot simply refuse and do nothing.

Healthcare Directive vs. Financial POA

These are completely separate documents under North Dakota law:

You cannot use a financial POA to make medical decisions, and a healthcare directive gives zero authority over bank accounts or property.

Getting Both Documents Right

A complete North Dakota estate plan requires both a financial power of attorney and a health care directive, each following its own rules. The North Dakota Power of Attorney Kit includes both documents with execution checklists that walk you through witness qualifications, notary requirements, and the specific provisions that make each document enforceable.

See more North Dakota guides →