Power of Attorney and Health Care – General – North Dakota

Selected Definitions

An “agent” is an adult to whom authority to make health care decisions is delegated under a durable power of attorney for health care.

The “capacity to make health care decisions” is the ability to understand and appreciate the nature and consequences of a health care decision, including the significant benefits and harms of and reasonable alternatives to any proposed health care.

A “durable power of attorney for health care” is a document delegating to an agent the authority to make health care decisions.

A “health care decision” is the consent to, refusal to consent to, withdrawal of consent to, or request for any care, treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition.

A “principal” means an adult who has executed a durable power of attorney for health care.

Authority
An agent has the authority to make any and all health care decisions on the principal’s behalf that the principal could make.

Execution and Witnesses
A durable power of attorney for health care must be signed by the principal in the presence of at least two or more subscribing witnesses, neither of whom may, at the time of execution, be the agent, the principal’s health or long term care services provider or the provider’s employee.

A witness cannot be the principal’s spouse or heir, a person related to the principal by blood or adoption, a person entitled to any part of the estate of the principal upon the death of the principal under a will or deed in existence or by operation of law, or any other person who has, at the time of execution, any claims against the estate of the principal.

The witnesses must affirm that the principal appeared to be of sound mind and free from duress at the time the durable power of attorney for health care was signed and that the principal affirmed that the principal was aware of the nature of the documents and signed it freely and voluntarily.

If the principal is physically unable to sign, the durable power of attorney for health care may be signed by the principal’s name being written by some other person in the principal’s presence and at the principal’s express direction.

Revocation
A durable power of attorney for health care can be revoked:

By notification by the principal to the agent or a health care or long term care services provider orally, or in writing, or by any other act evidencing a specific intent to revoke the power; or By execution by the principal of a subsequent durable power of attorney for health care.

A principal’s health care or long term care services provider who is informed of or provided with a revocation of a durable power of attorney for health care must immediately record the revocation in the principal’s medical record and notify the agent, the attending physician, and staff responsible for the principal’s care of the revocation.

If the spouse is the principal’s agent, the divorce of the principal and spouse revokes the appointment of the divorced spouse as the principal’s agent.

Statutory Form
The statutory form of durable power of attorney may be used and is the preferred form.

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