North Dakota: Living Will and Advance Health-Care Instruction Requirements
The short answer
North Dakota lets an adult with capacity place treatment instructions in a written, dated health care directive that states the adult's name, is signed personally or by an authorized signer, and uses either a notary or at least two adult witnesses. The instruction ordinarily takes effect only after an attending physician, psychiatrist, or psychologist certifies incapacity in writing and the certification is filed in the medical record; no terminal diagnosis is universally required. The directive may address any health-care decision, including artificial nutrition and hydration, but pregnancy, prehospital emergency treatment, provider-transfer rules, and reasonable medical standards impose statutory limits.
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This is the general rule in North Dakota. Ezel applies current North Dakota law to your specific facts and answers with citations to the statutes.
| Governing law and document | North Dakota Health Care Directives Act, N.D.C.C. ch. 23-06.5. Combined written 'health care directive' may contain 1+ health-care instructions, health-care POA, or both (§§ 23-06.5-02(5)–(6), -03). Optional statutory form in §§ 23-06.5-16 to -17; instruction remains distinct from agent appointment |
|---|---|
| Who may make an instruction | Principal is an adult who executes directive (§ 23-06.5-02(9)); execution requires capacity (§ 23-06.5-05(1)). Capacity to execute or revoke is presumed absent clear-and-convincing contrary evidence (§ 23-06.5-13(3)). Another person may sign as authorized; physically unable principal's name may be written by another in principal's presence and at express direction (§ 23-06.5-05) |
| Oral, written, and signature form | Directive must be written, dated, state principal's name, be signed by principal or authorized signer, verify that signature, and include instruction, POA, or both (§ 23-06.5-05(1)). No oral or electronic-specific creation route in chapter. Optional form requires date/signature and says attached pages are signed/dated with directive, but another compliant form may be used (§§ 23-06.5-16 to -17) |
| Witness, notary, and disqualifications | Signature verified by notary OR at least 2 subscribing witnesses age 18+ (§ 23-06.5-05(2)). At least 1 witness cannot be direct-care provider/employee; notary may be such employee. No notary/witness may be agent, spouse/heir, relative, estate taker/claimant, person financially responsible for medical care, or attending physician. Directed signature uses same verification |
| Covered conditions and trigger | Directive ordinarily effective only when attending physician, psychiatrist, OR psychologist certifies in writing that principal lacks capacity and certification enters medical record; ends when capacity returns (§ 23-06.5-03(3)). No universal terminal, end-stage, PVS, or other diagnosis. Immediate-effect exception in § 23-06.5-03(4) authorizes an AGENT to act while principal retains capacity; it is not a separate instruction-only route |
| Treatment, nutrition, hydration, and comfort | Instruction may direct any health-care decision, including provide/withhold/withdraw artificial nutrition/hydration and all other care (§ 23-06.5-02(4), (6)). Express feeding/hydration direction controls; if silent, attending physician may withhold/withdraw only when it cannot be assimilated, is physically harmful, or causes unreasonable physical pain (§ 23-06.5-09(6)). Optional form invites instructions for temporary incapacity, dying, permanent unconsciousness, complete dependence, pain relief, and other wishes (§ 23-06.5-17); comfort/pain duty remains (§ 23-06.5-09(4)) |
| Pregnancy and other statutory limits | Contrary instruction does not stop care during pregnancy unless attending physician + examining obstetrician certify, to reasonable medical certainty, care will not permit continuing development/live birth, will physically harm or unreasonably pain principal, OR prolong severe pain not alleviable by medication (§ 23-06.5-09(5)). Withholding directions do not apply to prehospital emergency treatment (§ 23-06.5-13(13)); chapter does not authorize mercy killing (§ 23-06.5-01) |
| Revocation, notice, and registry | Revoke by notifying agent or health/long-term-care provider orally, in writing, or by any act showing specific intent, or by executing later directive (§ 23-06.5-07). Informed provider immediately records revocation and notifies agent, attending physician, and care staff. Optional state registry may accept directives/revocations; nonfiling and failure to notify registry do not affect validity, provider need not search, and registry deletes on revocation plus file number (§ 23-06.5-19) |
| Provider duties, recognition, and effect | Provider with knowledge is bound to follow instruction consistent with chapter/directive; conscience/conflict refusal requires all reasonable transfer steps and continuing care until transfer (§ 23-06.5-09). No action contrary to reasonable medical standards; statutory good-faith/ordinary-care immunity (§ 23-06.5-12). Chapter preserves enforceability of directive executed elsewhere in compliance with that jurisdiction's law (§ 23-06.5-11) |
Compare this rule across all 50 states + DC →
North Dakota uses one written health care directive under N.D.C.C.
chapter 23-06.5. It may contain treatment instructions, appoint an agent, or
do both. This page covers the adult's own instructions, not the agent's powers.
Requirements one by one
Writing, date, name, signature, and verification are mandatory
Under § 23-06.5-05(1), the directive must be written and dated, state the
principal's name, carry the principal's signature or an authorized signer's
signature, verify that signature, and include at least one health-care
instruction or a health-care power of attorney.
Verification uses either a notary or at least two subscribing witnesses age 18
or older. At least one witness cannot be a direct-care provider or that
provider's employee. A notary may be such an employee, but no notary or witness
may be the agent, spouse or heir, a relative, an estate taker or claimant, a
person directly financially responsible for medical care, or the attending
physician (§ 23-06.5-05(2)).
If the principal is physically unable to sign, another person may write the
principal's name in the principal's presence and at the principal's express
direction. The same signature-verification rule applies. The chapter supplies
no oral or electronic-specific creation route.
Incapacity, not a particular diagnosis, activates the instruction
Under § 23-06.5-03(3), a directive ordinarily takes effect only when the
attending physician, psychiatrist, or psychologist certifies in writing that
the principal lacks capacity to make health-care decisions and the
certification is filed in the medical record. The directive stops operating
when capacity returns.
The Act imposes no universal terminal-condition, end-stage, or permanent-
unconsciousness diagnosis. A principal may write instructions for those or
other situations. Section 23-06.5-03(4) separately lets an agent act while
the principal retains capacity; it does not create an immediate-effect route
for a standalone treatment instruction.
Instructions can cover treatment broadly
A health-care instruction may direct any health-care decision for the
individual. That expressly includes providing, withholding, or withdrawing
artificial nutrition and hydration and every other form of health care
(§ 23-06.5-02(4), (6)).
Feeding and hydration deserve an express choice. Under § 23-06.5-09(6), a
written direction to provide, withhold, or withdraw them controls. If the
directive is silent, the attending physician may withhold or withdraw them
only after determining they cannot be physically assimilated, would be
physically harmful, or would cause unreasonable physical pain.
The optional § 23-06.5-17 form invites the adult to write instructions for
temporary incapacity with a reasonable chance of recovery, dying, permanent
unconsciousness, complete dependence, pain relief, and other wishes. These are
prompts, not mandatory conditions or preset answers.
What trips people up
- Pregnancy overrides a contrary instruction unless two clinicians certify
an exception. The attending physician and an obstetrician who examined the
principal must certify, to a reasonable degree of medical certainty, that
care will not permit continuing development and live birth, will be
physically harmful or unreasonably painful to the principal, or will prolong
severe pain that medication cannot alleviate (§ 23-06.5-09(5)). - A withholding instruction does not control prehospital emergency
treatment. § 23-06.5-13(13) expressly excludes emergency treatment in a
prehospital setting. - The registry is optional. § 23-06.5-19 authorizes filing if the
Information Technology Department establishes and maintains the registry,
but nonregistration does not affect validity and providers need not search
it. Removing a registered record requires the revocation and its file number.
Common questions
May a notary replace the witnesses?
Yes. § 23-06.5-05(2) permits either a notary or at least two qualified adult
witnesses. The disqualification list applies to the notary as well as every
witness.
Can I revoke orally?
Yes. Under § 23-06.5-07, the principal may notify the agent or a health-care
or long-term-care provider orally, in writing, or by another act showing a
specific intent to revoke. A later directive also revokes the earlier one to
the extent of conflict. An informed provider records the revocation immediately
and notifies the agent, attending physician, and responsible care staff.
What if a provider objects to my instruction?
A provider with knowledge is bound to follow an instruction consistent with
the Act and the directive. A conscience or other conflict allows refusal, but
the provider must take all reasonable transfer steps and continue care until a
transfer can occur (§ 23-06.5-09). Reasonable medical standards remain a
separate limit.
Will North Dakota enforce a directive signed elsewhere?
Section 23-06.5-11 preserves enforceability when the directive or similar
instrument complied with the law of the other state or jurisdiction.
Statutes and sources
- N.D.C.C. §§ 23-06.5-01 to -05 — purpose, definitions, document
architecture, operation, and execution. North Dakota Legislative Council
(accessed 2026-07-31). - N.D.C.C. §§ 23-06.5-07 and -09 — revocation, medical-record notice,
compliance, transfer, comfort, pregnancy, and nutrition/hydration. Same
official source (accessed 2026-07-31). - N.D.C.C. §§ 23-06.5-11 to -13 — reciprocity, immunity, presumptions, and
the prehospital limit. Same official source (accessed 2026-07-31). - N.D.C.C. §§ 23-06.5-16 to -17 and § 23-06.5-19 — optional form and
registry. Same official source (accessed 2026-07-31).
Source links
Every statute quoted above, linked, with the date we checked it.
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