NORTH DAKOTA LIVING WILL / ADVANCE HEALTH CARE DIRECTIVE
(Draft Template – For Attorney Customization)
[// GUIDANCE: This template is designed to comply with the North Dakota Uniform Health-Care Decisions Act, N.D. Cent. Code § 23-06.5-01 et seq. Confirm statutory citations and any recent amendments before final use.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
3.1 Appointment of Agent
3.2 Alternate Agents
3.3 Statement of General Authority
3.4 Specific Health-Care Instructions
3.5 Anatomical Gifts
3.6 Nomination of Guardian/Conservator - Representations & Warranties
- Covenants & Restrictions of Agent
- Default & Remedies
- Risk Allocation
- Revocation & Amendment
- General Provisions
- Execution Block
1. DOCUMENT HEADER
THIS NORTH DAKOTA LIVING WILL / ADVANCE HEALTH CARE DIRECTIVE (“Directive”) is made and entered into as of [EFFECTIVE DATE] (the “Effective Date”) by:
• [DECLARANT FULL LEGAL NAME], date of birth [DOB], residential address [ADDRESS] (“Declarant” or “Principal”).
Recitals
A. Declarant is a resident of the State of North Dakota and intends that this Directive be governed by and construed in accordance with N.D. Cent. Code § 23-06.5-01 et seq. (the “Act”).
B. Declarant is of sound mind and acting voluntarily, free of duress or undue influence, to provide advance instructions for health-care decisions and to designate one or more agents to act on Declarant’s behalf when Declarant lacks decision-making capacity.
2. DEFINITIONS
For purposes of this Directive, the following capitalized terms shall have the meanings set forth below. Any term not defined herein shall have the meaning ascribed to it in the Act.
“Act” – The North Dakota Uniform Health-Care Decisions Act, N.D. Cent. Code § 23-06.5-01 et seq.
“Agent” – The individual designated in Section 3.1 (or any Alternate Agent under Section 3.2) authorized to make Health-Care Decisions for the Declarant pursuant to this Directive and the Act.
“Directive” – This North Dakota Living Will / Advance Health Care Directive, together with all amendments and restatements hereto.
“Health-Care Decision” – Any decision made by the Declarant or the Agent regarding the Declarant’s health care, including the withholding or withdrawal of Life-Prolonging Treatment.
“Life-Prolonging Treatment” – Any medical intervention that is not expected to cure but will serve only to prolong the process of dying, including but not limited to mechanical ventilation, dialysis, and artificial nutrition or hydration.
“Primary Physician” – The physician designated by Declarant (or by the Agent if Declarant lacks capacity) to have primary responsibility for Declarant’s health care.
3. OPERATIVE PROVISIONS
3.1 Appointment of Agent
Declarant hereby designates:
• Primary Agent: [PRIMARY AGENT FULL NAME], phone [PHONE], address [ADDRESS], relationship to Declarant [RELATIONSHIP], to act as Declarant’s Agent to make Health-Care Decisions in accordance with this Directive and the Act when Declarant lacks decision-making capacity.
[// GUIDANCE: Verify Agent eligibility. Under N.D. law, Agent must be at least 18 and not the Declarant’s health-care provider unless that provider is related to Declarant.]
3.2 Alternate Agents
If the Primary Agent is unavailable, unable, or unwilling to serve, Declarant designates the following individuals, in the order named, as Alternate Agents:
1. [ALTERNATE AGENT #1 NAME, CONTACT]
2. [ALTERNATE AGENT #2 NAME, CONTACT]
3.3 Statement of General Authority
Except as limited herein, the Agent shall have the broadest authority permitted under the Act to:
a. Give or refuse informed consent to any health-care service, treatment, or procedure;
b. Select and discharge health-care providers and institutions;
c. Have access to all medical records and information pursuant to 45 C.F.R. § 164.502 (HIPAA Privacy Rule);
d. Authorize admission to or discharge from medical or long-term-care facilities; and
e. Obtain autopsy, order disposition of remains, and apply for public benefits to offset costs of care.
3.4 Specific Health-Care Instructions
3.4.1 End-of-Life Decisions
If at any time I have an incurable or irreversible condition that will result in my death within a reasonably short period, or if I am in a persistent vegetative state, I direct that:
[ ] Life-Prolonging Treatment be WITHHELD or WITHDRAWN.
[ ] Life-Prolonging Treatment be PROVIDED.
[// GUIDANCE: Check boxes or insert specific instructions.]
3.4.2 Artificial Nutrition & Hydration
[ ] I DO want artificial nutrition/hydration if needed to sustain life.
[ ] I DO NOT want artificial nutrition/hydration.
3.4.3 Pain Relief
I direct that medication be administered or procedures undertaken to alleviate pain or discomfort even if such treatment may hasten the moment of death, provided such actions are consistent with prevailing medical standards and my preferences expressed herein.
3.4.4 Pregnancy
If I am known to be pregnant, I direct that my instructions be:
[ ] Fully effective regardless of pregnancy.
[ ] Suspended during pregnancy to the extent they would adversely affect the fetus.
3.4.5 Mental Health Treatment (Optional)
[// GUIDANCE: Mental health advance instructions are permitted under ND law if clearly stated.]
I provide the following instructions regarding psychiatric medications, electroconvulsive therapy, or admission to psychiatric facilities:
[INSERT SPECIFIC INSTRUCTIONS OR “NONE”].
3.5 Anatomical Gifts
Upon my death, I authorize the following:
[ ] Any needed organs/tissues for transplantation, therapy, research, or education.
[ ] Only the following organs/tissues: [SPECIFY].
[ ] No anatomical gifts.
3.6 Nomination of Guardian or Conservator
Should a court determine the appointment of a guardian or conservator is necessary, I nominate:
[NAME], address [ADDRESS], telephone [PHONE], as first nominee; and
[NAME], address [ADDRESS], telephone [PHONE], as alternate nominee.
4. REPRESENTATIONS & WARRANTIES
Declarant represents, warrants, and affirms that:
4.1 Declarant is at least eighteen (18) years of age, of sound mind, and acting voluntarily.
4.2 Declarant understands the nature and import of this Directive and the consequences of executing it.
4.3 No undue influence, fraud, or duress has been exerted upon Declarant.
4.4 Declarant has been advised of the right to consult independent counsel and medical professionals prior to execution.
The foregoing representations shall survive execution and shall be relied upon in good-faith compliance by any Health-Care Provider or other third party.
5. COVENANTS & RESTRICTIONS OF AGENT
The Agent (and any Alternate Agent acting hereunder) covenants and agrees:
a. To act in good faith and in accordance with Declarant’s known wishes;
b. To consider the Declarant’s personal values, religious beliefs, and previously expressed preferences;
c. To consult with medical professionals and family members as appropriate;
d. To keep accurate records of significant health-care decisions and provide them upon reasonable request to interested persons;
e. NOT to receive financial compensation for acting as Agent, other than reimbursement of reasonable expenses; and
f. To avoid any conflict of interest that could impair the Agent’s objectivity.
6. DEFAULT & REMEDIES
6.1 Invalid Appointment. If all named Agents are unable or unwilling to act, decision-making authority shall pass in accordance with the priority scheme set forth in N.D. Cent. Code § 23-06.5-04(2).
6.2 Failure to Act in Good Faith. Any Health-Care Provider or interested person may petition a court of competent jurisdiction for declaratory or injunctive relief to remove an Agent who is acting, has acted, or threatens to act contrary to Declarant’s expressed wishes or best interests.
6.3 Attorney’s Fees. A prevailing party in any such proceeding shall be entitled to recover reasonable attorney’s fees and costs incurred, unless the court determines such an award would be unjust.
7. RISK ALLOCATION
7.1 Provider Protection (Indemnification). Declarant agrees to indemnify and hold harmless any Health-Care Provider, institution, or individual who in good faith relies on this Directive or the Agent’s directions, to the fullest extent permitted under N.D. Cent. Code § 23-06.5-11.
7.2 Good-Faith Liability Cap. No Health-Care Provider or Agent acting in good faith and in substantial compliance with this Directive and the Act shall incur civil or criminal liability or be subject to professional discipline for such reliance or actions.
7.3 Force Majeure. Providers shall not be liable for failure to carry out Declarant’s instructions where impracticable due to riot, war, natural disaster, or other circumstances constituting force majeure.
8. REVOCATION & AMENDMENT
8.1 Revocation by Declarant. Declarant may revoke this Directive, in whole or in part, at any time and in any manner that communicates intent to revoke, pursuant to N.D. Cent. Code § 23-06.5-07. Revocation is effective upon communication to the attending physician or health-care provider.
8.2 Automatic Revocation. Unless otherwise indicated herein, the appointment of Declarant’s spouse as Agent is revoked upon the legal dissolution or annulment of the marriage.
8.3 Amendment. Declarant may amend this Directive by executing a subsequent instrument that expressly amends or supersedes this Directive, subject to the same execution formalities.
[// GUIDANCE: Attorneys should insert procedures for distribution of copies and updating electronic medical records following amendment/revocation.]
9. GENERAL PROVISIONS
9.1 Governing Law. This Directive shall be governed by and construed in accordance with the laws of the State of North Dakota, without regard to conflict-of-laws principles.
9.2 Severability. If any provision is found invalid or unenforceable, the remaining provisions shall remain in full force and effect to the greatest extent permissible.
9.3 Integration. This Directive constitutes the complete and exclusive statement of Declarant’s instructions and supersedes all prior directives to the extent of any inconsistency.
9.4 Copies. A photocopy, facsimile, or electronically transmitted copy of this executed Directive shall be as valid as the original.
9.5 No Waiver. Failure to enforce any provision shall not be construed as a waiver of future enforcement of that or any other provision.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, Declarant has executed this Directive on the Effective Date first above written.
Declarant
[DECLARANT NAME] – Declarant
Date: _____
OPTION 1 – NOTARIZATION (may be used in place of witnesses)
State of North Dakota )
County of __ ) ss.
On this _ day of _, 20____, before me, the undersigned Notary Public, personally appeared [DECLARANT NAME], known to me or satisfactorily proven to be the person whose name is subscribed to this instrument, and acknowledged that he/she executed the same for the purposes therein contained.
Notary Public for the State of North Dakota
My commission expires: ___
OPTION 2 – TWO WITNESSES (Notary Not Used)
We declare that the Declarant is personally known to us, appeared to be of sound mind, and signed this Directive willingly, free from duress. We are not the Agent or Alternate Agent, not related to the Declarant by blood, marriage, or adoption, and not entitled to any portion of Declarant’s estate.
Witness #1
Name: ______
Address: _____
Date: ____
Witness #2
Name: ______
Address: _____
Date: ____
[// GUIDANCE: At least one witness must meet the disinterested-witness criteria above pursuant to N.D. Cent. Code § 23-06.5-05(2).]
End of Document