Default Health-Care Surrogate Priority in North Dakota
At a glance
| When the default route opens | Adult cannot understand/appreciate and communicate decision; attending physician, psychiatrist or psychologist certifies and files finding (§ 23-12-13(1)(a)). |
|---|---|
| Care or setting covered | Informed consent to proposed health care for an incapacitated adult; no single-facility restriction in this provision (§ 23-12-13(1)–(2)). |
| Guardian or appointed agent | Health-care directive agent, then appointed guardian or custodian unless court orders otherwise (§ 23-12-13(2)(a)–(b)). |
| Family and partner order | Significant-contact spouse; adult child; parent including stepparent; adult sibling; grandparent; adult grandchild; adult close relative or friend (§ 23-12-13(2)(c)–(i)). |
| Friend or other nonfamily person | Adult close friend with significant contact; last, team of at least three health-care professionals with an uninvolved member and continuing higher-priority search (§ 23-12-13(2)(i)–(j)). |
| Decision within one class | Provider seeks a competent person in the first reachable class; higher-priority refusal bars consent from a lower class; court may determine otherwise (§ 23-12-13(2), (4)). |
| Who is available and eligible | Provider makes reasonable efforts to locate competent first/succeeding class; significant contact required for listed family/friend classes; lower class only if higher unavailable (§ 23-12-13(2), (4)). |
| Decisions limited or excluded | First assess what patient would consent to, then best interest if unknown; no sterilization, abortion, psychosurgery or state mental-health admission over 45 days absent court route (§ 23-12-13(5)–(6)). |
| No surrogate or disputed authority | Three-professional team last; capacity objection by patient/interested person requires guardianship-court hearing (§ 23-12-13(2)(j), (7)). |
Requirements one by one
When the default route opens
Section 23-12-13(1)(a) defines an incapacitated adult as unable to understand and appreciate the nature and consequences of a decision, its benefits, harms and reasonable alternatives, and unable to communicate the decision. The attending physician, psychiatrist or psychologist certifies this and files it in the medical record.
Family and other eligible people
The order in § 23-12-13(2) begins with a health-care directive agent and appointed guardian or custodian, subject to contrary court determination. It then lists spouse, adult child, parent (including a stepparent), adult sibling, grandparent, adult grandchild, and an adult close relative or friend. The listed family and friend classes require significant contact with the patient. The last class is a team of at least three health-care professionals; an involved provider employee may participate only if at least one member is not directly involved in treatment. If the team consents, the provider keeps trying to locate someone higher in priority.
Decision within one class
Under § 23-12-13(4), the provider makes reasonable efforts to get authorization from a competent person in the first reachable class. A lower class may authorize only when a higher one cannot be located, and it cannot override a higher-priority person's refusal.
Decisions limited or excluded
Before acting, the decision-maker must determine in good faith whether the patient would consent; if this cannot be determined, the proposed care must be in the patient's best interests (§ 23-12-13(5)). Under § 23-12-13(6), this authority does not permit consent to sterilization, abortion, psychosurgery, or admission to a state mental-health facility for more than 45 days without a mental-health proceeding or other court order.
No surrogate or disputed authority
The professional team is the final class, with continuing higher-priority search (§ 23-12-13(2)(j)). If the patient or an interested person objects to the incapacity finding, § 23-12-13(7) requires a court hearing under the guardianship chapter.
What trips people up
An unavailable higher-priority person permits moving down the list; a higher-priority person who refuses consent does not (§ 23-12-13(4)). The team route remains a last class with an ongoing search duty, not a substitute for locating family (§ 23-12-13(2)(j)).
Common questions
Can a close friend make the decision?
Yes, after the listed family classes, if the adult friend has maintained significant contact and the higher classes are not available (§ 23-12-13(2)(i), (4)).
Can the clinician team act permanently once it signs?
The statute requires the provider to continue good-faith efforts to find an individual in a higher-priority class even after team consent (§ 23-12-13(2)(j)(2)).
Statutes and sources
- N.D. Cent. Code § 23-12-13 — official compiled chapter PDF: https://ndlegis.gov/cencode/t23c12.pdf#page=6 (accessed 2026-10-08). The final 2025 SB 2297 enrolled text confirms the enacted rewrite incorporated there.
Source links
Every statute quoted above, linked, with the date we checked it.
What does North Dakota law mean for your facts?
You just read the general rule. Ask your own question and see which parts of current North Dakota law apply to your situation, with citations you can check.
Opens in Ezel Pro.
- Starts from the statutes this survey is built on
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace