1.    A principal may execute a health care directive. A health care directive may include one or more health care instructions to health care providers, others assisting with health care, family members, and a health care agent. A health care directive may include a power of attorney to appoint an agent to make health care decisions for the principal when the principal lacks the capacity to make health care decisions, unless otherwise specified in the health care directive. Subject to the provisions of this chapter and any express limitations set forth by the principal in the health care     directive, the agent has the authority to make any and all health care decisions on the principal’s behalf that the principal could make.

Terms Used In North Dakota Code 23-06.5-03

  • Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
  • State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49

2.    After consultation with the attending physician and other health care providers, the agent shall make health care decisions:

a.    In accordance with the agent’s knowledge of the principal’s wishes and religious or moral beliefs, as stated orally, or as contained in the principal’s health care directive; or

b.    If the principal’s wishes are unknown, in accordance with the agent’s assessment of the principal’s best interests. In determining the principal’s best interests, the agent shall consider the principal’s personal values to the extent known to the agent.

3.    A health care directive, including 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 and filed in the principal’s medical record, and ceases to be effective upon a determination that the principal has recovered capacity.

4.    Notwithstanding subsection 3, the principal may authorize in a health care directive that the agent make health care decisions for the principal even though the principal retains capacity to make health care decisions. In that case, the health care directive is in effect as stated in the health care directive under any conditions the principal may impose. The principal’s authorization under this subsection may be revoked in the same manner as a health care directive may be revoked under section 23-06.5-07.

5.    The principal’s attending physician shall make reasonable efforts to inform the principal of any proposed treatment, or of any proposal to withdraw or withhold treatment.

6.    Nothing in this chapter permits an agent to consent to admission to a mental health facility or state institution for a period of more than forty-five days without a mental health proceeding or other court order, or to psychosurgery, abortion, or sterilization, unless the procedure is first approved by court order.