Health Care Power of Attorney Requirements in North Dakota

At a glance

North Dakota puts advance-care planning into a single health care directive, N.D.C.C. ch. 23-06.5. One document can name a health care agent (a power of attorney for health care), give treatment instructions (the living will), or both (§ 23-06.5-02(5)). This page is about executing the agent appointment.

North Dakota's execution rule is a familiar either/or — a notary or two witnesses — but the state layers on an unusually detailed list of who may not witness, and it separately restricts who may serve as your agent.

Requirements one by one

Governing law and document

The chapter supplies an optional statutory form (§§ 23-06.5-16, -17), but you are free to use any writing that complies with the chapter. Because the form is not printable as-is, North Dakota's own Legal Self Help Center tells residents to copy the § 23-06.5-17 text into a document and fill it in — or to use a provider's form — and to avoid out-of-state forms that may not meet North Dakota's rules.

Who can sign

A principal — an adult (§ 23-06.5-02(9)) — signs. The directive "must be in writing," "dated," state your name, and carry your signature, or the signature of someone you authorize to sign for you (§ 23-06.5-05(1)). If you are physically unable to sign, another person may write your name "in the principal's presence and at the principal's express direction" (§ 23-06.5-05(2)). Your capacity to sign is presumed unless there is clear and convincing evidence otherwise (§ 23-06.5-13(3)).

Witnesses or notary

You choose one of two verification methods under § 23-06.5-05(2): a notary public may verify your signature, or at least two subscribing witnesses age eighteen or older may do so. A notary by itself is enough — and, unusually, the statute expressly allows the notary to be "an employee of a health care or long-term care provider providing direct care to the principal." If you use witnesses instead, at least one witness must not be a direct-care provider or such a provider's employee.

Who can't witness or serve

The notary or any witness may not be, at the time of execution: your agent; your spouse or heir; a relative by blood, marriage, or adoption; anyone entitled to part of your estate under a will or deed or by law; anyone with a claim against your estate; a person directly financially responsible for your medical care; or your attending physician (§ 23-06.5-05(2)). This is a longer bar list than many states use.

Separately, § 23-06.5-04 restricts who may act as your agent: a person may not serve while they are your health care provider, a nonrelative employee of that provider, your long-term care services provider, or a nonrelative employee of that provider. (A relative in one of those jobs is not barred.)

When the agent can act

By default the authority is springing. The directive and the agent's authority "is in effect only when the principal lacks capacity to make health care decisions, as certified in writing by the principal's attending physician, psychiatrist, or psychologist and filed in the principal's medical record," and ends when you recover capacity (§ 23-06.5-03(3)). Note the certifier can be a psychiatrist or psychologist, not only a physician. You may also flip the default: § 23-06.5-03(4) lets you authorize your agent to act "even though the principal retains capacity," under any conditions you set.

Agent's powers and limits

Once effective, and subject to any limits you write in, "the agent has the authority to make any and all health care decisions on the principal's behalf that the principal could make" (§ 23-06.5-03(1)). That includes directing the provision, withholding, or withdrawal of artificial nutrition and hydration (§ 23-06.5-02(4)); no separate end-of-life grant is required.

North Dakota then draws hard lines the agent cannot cross without a court (§ 23-06.5-03(6)): an agent may not consent to admission to a mental health facility or state institution for more than 45 days without a mental health proceeding or court order, and may not consent to psychosurgery, abortion, or sterilization unless a court approves it first. And for a pregnant principal, health care must continue unless the attending physician and an obstetrician certify it will not permit the pregnancy to reach live birth or will harm her (§ 23-06.5-09(5)).

How to revoke

Revocation is informal. You revoke by telling your agent or a health care or long-term care provider — "orally, or in writing, or by any other act evidencing a specific intent to revoke" — or by signing a later directive (§ 23-06.5-07(1)). Your capacity to revoke is presumed (§ 23-06.5-13(3)). A divorce revokes a spouse-agent's appointment unless the directive says otherwise (§ 23-06.5-07(3)), and a newer directive overrides an older one (§ 23-06.5-13(2)).

Out-of-state directives

North Dakota honors them. The chapter "does not limit the enforceability of a health care directive or similar instrument executed in another state or jurisdiction in compliance with the law of that state or jurisdiction" (§ 23-06.5-11). So a directive valid where you signed it stays enforceable here — though North Dakota's own Self Help Center still recommends re-doing it to North Dakota's standard to avoid disputes.

What trips people up

• The witness disqualification list is long. Beyond the agent, North Dakota also bars your spouse, heirs, relatives, anyone who would inherit or has a claim against your estate, anyone financially responsible for your care, and your attending physician from witnessing (§ 23-06.5-05(2)). Using a notary — who can be a provider's employee — sidesteps most of this.
• At least one witness must be independent of your care. If you go the two-witness route, one witness cannot be a provider giving you direct care or that provider's employee (§ 23-06.5-05(2)).
• Your agent's power over mental-health admission, psychosurgery, abortion, and sterilization is capped. Those decisions need a court (or, for a long mental-health admission, a proceeding) — the document alone cannot grant them (§ 23-06.5-03(6)).
• Divorce cancels a spouse-agent. Unless your directive says to keep them, a divorce ends your spouse's appointment (§ 23-06.5-07(3)). Name an alternate.

Common questions

Does a North Dakota health care directive have to be notarized? No. You can use a notary or two qualified witnesses age 18 or older; either one verifies your signature (§ 23-06.5-05(2)).

Can a nurse at my facility be my witness? Only partly. A direct-care provider or their employee cannot be your sole or "independent" witness — at least one witness must be outside your care team — but a provider's employee may act as the notary (§ 23-06.5-05(2)).

When does my agent's authority start? Usually only after a physician, psychiatrist, or psychologist certifies in writing that you lack capacity (§ 23-06.5-03(3)). You can choose to let your agent act sooner (§ 23-06.5-03(4)).

Can my agent decide to stop life support or tube feeding? Yes, by default — artificial nutrition and hydration is part of a "health care decision" your agent may make (§ 23-06.5-02(4)) — unless you limit it, and subject to the pregnancy rule in § 23-06.5-09(5).

Statutes and sources

• N.D.C.C. § 23-06.5-02 — definitions, including a "health care decision" covering artificial nutrition and hydration, and "principal" as an adult. https://ndlegis.gov/cencode/t23c06-5.pdf (accessed 2026-08-20)
• N.D.C.C. § 23-06.5-03 — the agent's authority, when the directive takes effect, the immediate-effect option, and the court-order limits. https://ndlegis.gov/cencode/t23c06-5.pdf (accessed 2026-08-20)
• N.D.C.C. § 23-06.5-04 — who may not act as agent. https://ndlegis.gov/cencode/t23c06-5.pdf (accessed 2026-08-20)
• N.D.C.C. § 23-06.5-05 — execution: writing, date, signature, notary-or-two- witness verification, and the disqualified notaries and witnesses. https://ndlegis.gov/cencode/t23c06-5.pdf (accessed 2026-08-20)
• N.D.C.C. § 23-06.5-07 — revocation, including revocation of a spouse-agent on divorce. https://ndlegis.gov/cencode/t23c06-5.pdf (accessed 2026-08-20)
• N.D.C.C. § 23-06.5-11 — recognition of out-of-state directives. https://ndlegis.gov/cencode/t23c06-5.pdf (accessed 2026-08-20)