HEALTH CARE POWER OF ATTORNEY
(North Dakota Uniform Health-Care Decisions Act Directive)
[// GUIDANCE: This template is drafted to comply with the North Dakota Uniform Health-Care Decisions Act, N.D. Cent. Code §§ 23-06.5-01 et seq. (2023) and the federal HIPAA Privacy Rule, 45 C.F.R. § 164.508 (2023). Customize all bracketed placeholders before execution. Either (i) sign before two qualified witnesses or (ii) execute before a notary public, but not both. Retain original executed copies in easily accessible locations and provide copies to the Agent, Alternate Agents, and primary health-care providers.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Appointment of Agent and Successor Agents
- Scope of Agent’s Authority
- Limitations on Agent’s Authority
- End-of-Life Instructions
- HIPAA Authorization
- Representations & Warranties
- Covenants & Restrictions
- Default, Removal, and Successor Appointment
- Risk Allocation & Indemnification
- Governing Law, Forum, and Injunctive Relief
- General Provisions
- Execution Block
- Notary Acknowledgment / Witness Attestation
1. DOCUMENT HEADER
1.1 Title. Health Care Power of Attorney and Advance Health-Care Directive (the “Directive”).
1.2 Principal. [PRINCIPAL LEGAL NAME], residing at [ADDRESS] (“Principal”).
1.3 Agent. [PRIMARY AGENT LEGAL NAME], residing at [ADDRESS] (“Agent”).
1.4 Effective Date. This Directive becomes effective on the date executed below (the “Effective Date”) and remains in effect until revoked pursuant to Section 13.4.
1.5 Recitals.
(a) Principal is an adult of sound mind who desires to designate an Agent to make health-care decisions on Principal’s behalf if Principal becomes incapable of making such decisions personally.
(b) This Directive is executed pursuant to and intended to comply with the North Dakota Uniform Health-Care Decisions Act, N.D. Cent. Code §§ 23-06.5-01 et seq., and all other applicable law.
(c) Principal intends that health-care providers may rely on this Directive as conclusive authority for the Agent’s decisions made in good faith.
2. DEFINITIONS
For purposes of this Directive, capitalized terms have the meanings set forth below.
2.1 “Advance Instruction” means Principal’s written statement of treatment preferences, including end-of-life decisions, as set forth in Section 6.
2.2 “Good Faith” means honesty in fact in the conduct of the transaction concerned.
2.3 “Health-Care” has the meaning provided in N.D. Cent. Code § 23-06.5-02(5).
2.4 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, including 45 C.F.R. parts 160 and 164.
2.5 “Incapacity” means the inability to understand and appreciate the nature and consequences of a health-care decision, as certified in writing by the attending physician or, if applicable, by the health-care facility’s ethics committee.
2.6 “Qualified Witness” means an individual who is at least eighteen (18) years of age, not related to Principal by blood, marriage, or adoption, not entitled to any portion of Principal’s estate, and not directly financially responsible for Principal’s medical care.
[// GUIDANCE: Supplement this Definitions Section if additional specialized terms are inserted elsewhere.]
3. APPOINTMENT OF AGENT AND SUCCESSOR AGENTS
3.1 Primary Agent. Principal hereby appoints the Agent to act on Principal’s behalf concerning all matters relating to Principal’s Health-Care, subject to the limitations herein.
3.2 First Successor Agent. If the Agent is unable, unwilling, or unavailable to act, Principal designates [FIRST SUCCESSOR AGENT NAME], residing at [ADDRESS], as first successor agent.
3.3 Second Successor Agent. If neither the Agent nor the first successor agent is able or willing to act, Principal designates [SECOND SUCCESSOR AGENT NAME], residing at [ADDRESS], as second successor agent.
3.4 Agent Hierarchy. Only one agent may act at any given time. Successor agents shall have authority only upon written certification of the prior agent’s disqualification or inability to act.
3.5 Revocation of Prior Directives. Execution of this Directive revokes any prior durable power of attorney for health care or advance health-care directive executed by Principal.
4. SCOPE OF AGENT’S AUTHORITY
4.1 General Grant. Subject to Section 5, the Agent is authorized to make any and all Health-Care decisions the Principal could make if competent, including without limitation:
(a) Consent to, refuse, or withdraw treatment, diagnostic procedures, medications, and surgeries;
(b) Admit Principal to or discharge from hospitals, nursing homes, hospice, or other facilities;
(c) Execute waivers, consents, and releases under applicable law;
(d) Access all medical and related records and disclose them as reasonably necessary;
(e) Hire and fire medical, social, and support personnel; and
(f) Authorize autopsy, organ donation, and final disposition arrangements, subject to Section 5.4.
4.2 Timing of Authority. The Agent’s authority commences upon a determination of Principal’s Incapacity unless Principal checks one of the following options:
[PLACEHOLDER—INITIAL ONE]
□ (a) Authority Commences Immediately.
□ (b) Authority Commences Only Upon Incapacity.
4.3 Continuing Authority. The Agent’s authority continues during periods of Incapacity and terminates upon revocation, death of Principal, or as otherwise provided by law.
5. LIMITATIONS ON AGENT’S AUTHORITY
5.1 Good Faith Standard. The Agent shall act in Good Faith, consistent with Principal’s known wishes and best interests.
5.2 Prohibited Acts. The Agent may not:
(a) Make any decision expressly forbidden by Principal in this Directive;
(b) Authorize involuntary commitment solely for convenience;
(c) Consent to any act prohibited by prevailing law or public policy.
5.3 Life-Prolonging Measures. The Agent must follow the Advance Instruction in Section 6 regarding life-sustaining treatment, unless those instructions are unclear or unobtainable, in which case the Agent shall act in Good Faith and in Principal’s best interests.
5.4 Anatomical Gifts. Principal [PLACEHOLDER—INITIAL ONE]:
□ (a) Authorizes any needed anatomical gifts;
□ (b) Authorizes only the following gifts: [SPECIFY];
□ (c) Does not authorize anatomical gifts.
6. END-OF-LIFE INSTRUCTIONS
[// GUIDANCE: Carefully review end-of-life options with the client. ND law honors clearly expressed intent.]
6.1 Statement of Intent. Principal desires that dignity, comfort, and quality of life be the guiding factors in any end-of-life decision.
6.2 Directive for Life-Sustaining Treatment (initial one):
□ (a) Terminate/Withhold. If Principal is diagnosed with (i) a terminal condition, (ii) is permanently unconscious, or (iii) has a condition for which life-sustaining procedures only prolong the dying process, Principal directs that life-sustaining treatment be withheld or withdrawn, and that pain-relieving medication be provided as needed for comfort, even if it may hasten death.
□ (b) Maintain. Principal directs that all available life-sustaining measures be provided regardless of prognosis.
□ (c) Agent Discretion. Principal defers to Agent to decide in Good Faith.
6.3 Artificial Nutrition and Hydration (initial one):
□ (a) Decline artificial nutrition and hydration.
□ (b) Provide artificial nutrition and hydration.
□ (c) Leave to Agent’s discretion.
6.4 Palliative Care. Principal authorizes palliative and hospice care consistent with the above selections.
7. HIPAA AUTHORIZATION
7.1 Authorization. Principal hereby authorizes any covered entity, as defined in 45 C.F.R. § 160.103, to disclose to the Agent all protected health information (“PHI”) relating to Principal, effective immediately and for so long as this Directive remains in effect.
7.2 Scope. This authorization applies to PHI in any form, including electronic, paper, or oral communications, for purposes of health-care decision-making and insurance coordination.
7.3 Redisclosure Notice. Information disclosed under this authorization may be subject to redisclosure and may no longer be protected by HIPAA.
7.4 Expiration. This authorization shall not expire until revoked pursuant to Section 13.4.
8. REPRESENTATIONS & WARRANTIES
8.1 Capacity. Principal represents and warrants that Principal is at least eighteen (18) years old and of sound mind.
8.2 Voluntary Execution. Execution of this Directive is voluntary and free from duress or undue influence.
8.3 No Conflicting Directives. Principal has revoked all prior conflicting health-care directives.
8.4 Survival. The representations and warranties in this Section 8 survive execution and remain effective until revocation.
9. COVENANTS & RESTRICTIONS
9.1 Agent’s Covenants. The Agent covenants to:
(a) Act in Good Faith and consistent with Principal’s expressed wishes;
(b) Consult, when practicable, with Principal’s attending physician(s) before making material decisions;
(c) Maintain adequate records of major decisions.
9.2 Compensation. Absent express written agreement to the contrary, the Agent shall serve without compensation but may be reimbursed for reasonable out-of-pocket expenses.
9.3 Conflicts of Interest. The Agent shall avoid self-dealing and disclose any potential conflict promptly to involved health-care providers.
10. DEFAULT, REMOVAL, AND SUCCESSOR APPOINTMENT
10.1 Events of Default. An Agent is deemed in default if the Agent:
(a) Fails to act in Good Faith;
(b) Acts outside the authority granted; or
(c) Becomes incapacitated or unavailable for an unreasonable period.
10.2 Remedies. Upon default, any interested party may petition the [STATE_PROBATE_COURT] for (i) removal of the Agent, (ii) appointment of the next successor agent under Section 3, or (iii) other equitable relief, including but not limited to injunctive relief compelling compliance with this Directive.
10.3 Notice and Cure. Except in emergencies, the Agent shall be given written notice of alleged default and a forty-eight (48) hour opportunity to cure before judicial action is initiated.
11. RISK ALLOCATION & INDEMNIFICATION
11.1 Good-Faith Immunity. In accordance with N.D. Cent. Code § 23-06.5-11, any person, including the Agent, who acts in Good Faith reliance on this Directive is not subject to civil or criminal liability.
11.2 Indemnification. Principal agrees to indemnify and hold harmless the Agent from any liability, loss, or expense incurred as a result of actions taken in Good Faith pursuant to this Directive, except for willful misconduct or gross negligence.
11.3 Liability Cap. The Agent’s liability, if any, shall not exceed damages proximately caused by actions in bad faith or with gross negligence.
12. GOVERNING LAW, FORUM, AND INJUNCTIVE RELIEF
12.1 Governing Law. This Directive is governed by and construed in accordance with the laws of the State of North Dakota, without regard to conflict-of-laws principles.
12.2 Forum Selection. Exclusive jurisdiction and venue for disputes arising under this Directive shall lie in the [COUNTY] County District Court, Probate Division, State of North Dakota (the “Court”).
12.3 Arbitration & Jury Trial. Arbitration is not available, and no provision herein constitutes a waiver of jury trial rights.
12.4 Injunctive Relief. The Court is empowered to issue injunctive relief to enforce any provision of this Directive and to preserve Principal’s health-care interests.
13. GENERAL PROVISIONS
13.1 Amendment. Principal may amend this Directive at any time by executing a subsequent directive that complies with N.D. Cent. Code § 23-06.5-05.
13.2 Severability. If any provision of this Directive is deemed invalid or unenforceable, the remaining provisions remain in full force.
13.3 Copies. A photocopy, facsimile, or electronically transmitted copy of this Directive shall have the same force and effect as an original.
13.4 Revocation. Principal may revoke this Directive at any time by (i) a signed writing, (ii) personally informing the attending physician, or (iii) intentionally destroying or directing another to destroy the document.
13.5 Integration. This Directive constitutes the entire understanding of the parties with respect to the subject matter and supersedes all prior inconsistent directives.
13.6 Counterparts; Electronic Signatures. This Directive may be executed in counterparts, including by electronic signature, each of which shall be deemed an original.
14. EXECUTION BLOCK
Executed on this ___ day of _, 20.
PRINCIPAL:
[PRINCIPAL LEGAL NAME]
15. NOTARY ACKNOWLEDGMENT / WITNESS ATTESTATION
(Choose either Section 15.1 or Section 15.2)
15.1 Notary Public
State of North Dakota )
County of ______ ) ss.
On this ___ day of _, 20, before me, a Notary Public in and for said county and state, personally appeared [PRINCIPAL LEGAL NAME], known to me or satisfactorily proven to be the person whose name is subscribed to the foregoing instrument, and acknowledged that (s)he executed the same for the purposes therein contained.
Notary Public
My Commission Expires: ______
15.2 Witness Attestation
We, the undersigned, declare that we are at least eighteen (18) years of age, not related to the Principal by blood, marriage, or adoption, not entitled to any portion of the Principal’s estate, and not directly financially responsible for the Principal’s medical care. We witnessed the Principal sign or acknowledge this Directive, and we affirm that the Principal appeared to be of sound mind and acting voluntarily.
Witness #1:
Name: [PRINT]
Address: ____
Date: _______
Witness #2:
Name: [PRINT]
Address: ____
Date: _______
[// GUIDANCE: Attach optional “Agent’s Acceptance” or “Statement of Desire for Spiritual Care” as separate schedules if desired. Review annually and after major life events to ensure continued alignment with Principal’s wishes.]
© [YEAR] Prepared by [LAW FIRM / AUTHOR]. All rights reserved. This template is provided for attorney use and requires customization to specific client circumstances.