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Living Will in North Dakota: The Health Care Directive, Witnesses and Who Decides

In North Dakota, a living will is part of a health care directive, which needs a notary or two qualified witnesses, and relatives can't be either. Here is how it works under N.D.C.C. chapter 23-06.5.

By naveen · Updated October 13, 2026 · How we research our guides

A living will in North Dakota, for anything signed today, is the health care instructions part of a health care directive, which must be verified by a notary or two qualified witnesses under N.D.C.C. chapter 23-06.5. The state's older Uniform Rights of Terminally Ill Act, chapter 23-06.4, is listed as repealed, and a directive is now "a written instrument that complies with this chapter and includes one or more health care instructions, a power of attorney for health care, or both" (N.D.C.C. 23-06.5-02). The North Dakota courts' Legal Self Help Center notes that a health care directive is "also referred to as a Health Care Power of Attorney."

What is a health care directive in North Dakota?

A North Dakota health care directive is one written document with up to two working parts, health care instructions and a power of attorney for health care, and your parent can use either or both:

The agent has authority "to make any and all health care decisions on the principal's behalf that the principal could make," subject to the chapter and any limits your parent writes in. A financial power of attorney is separate and doesn't cover health care; see our North Dakota power of attorney guide. For the general picture, see power of attorney vs. advance directive.

Is an older North Dakota living will still valid?

Yes, if it met the law in effect when it was signed. Under N.D.C.C. 23-06.5-15, "A health care directive executed before August 1, 2005, which complies with the law in effect at the time it was executed, including former chapter 23-06.4, must be given effect pursuant to this chapter." The chapter also doesn't affect a durable power of attorney for health care signed before that date. If your parent's papers are that old, it's worth reading them with your parent to see whether they still say what your parent wants.

How do you sign a health care directive in North Dakota?

Under N.D.C.C. 23-06.5-05, a directive must be in writing, be dated, state your parent's name, be signed by your parent (or by someone at their express direction if they're physically unable), and include instructions, an agent, or both. The signature "must be verified by a notary public or at least two or more subscribing witnesses who are at least eighteen years of age."

The optional form's signing block warns: "THIS HEALTH CARE DIRECTIVE WILL NOT BE VALID UNLESS IT IS NOTARIZED OR SIGNED BY TWO QUALIFIED WITNESSES WHO ARE PRESENT WHEN YOU SIGN OR ACKNOWLEDGE YOUR SIGNATURE." If your parent attaches extra pages, each one must be dated and signed at the same time.

Who can't witness or notarize it?

The agent, your parent's spouse, heirs and relatives, and others with a stake in your parent's estate or care can't be the notary or a witness. At the time of signing, the notary or any witness can't be:

• the agent;
• your parent's spouse or heir;
• anyone related to your parent by blood, marriage or adoption;
• anyone entitled to part of your parent's estate under a will or deed or by operation of law;
• anyone with a claim against your parent's estate;
• a person directly financially responsible for your parent's medical care;
• your parent's attending physician.

That rules out adult children, grandchildren, in-laws and other relatives. At least one witness must not be a health care or long-term care provider giving your parent direct care, or that provider's employee. A notary may be an employee of such a provider.

Who can't be the health care agent?

Your parent's health care or long-term care provider can't be the agent, and neither can that provider's employees who aren't related to your parent. Under N.D.C.C. 23-06.5-04, a person can't act as agent while serving as:

• your parent's health care provider;
• a nonrelative employee of that provider;
• your parent's long-term care services provider;
• a nonrelative employee of that long-term care provider.

Relatives can serve as agent even if they work for the provider. The courts' research guide adds that the agent "doesn’t have to agree in writing," though the form suggests discussing the directive with the agent and giving them a copy.

Where do you get a North Dakota health care directive form?

The statute prints an optional form in N.D.C.C. 23-06.5-17. N.D.C.C. 23-06.5-16 calls it "an optional form, but not a required form," and says "Another form may be used if it complies with this chapter." The Legal Self Help Center says the state courts "don’t have forms or instructions for Health Care Directives," and that "Health care providers may have Health Care Directive forms available for their patients."

Under the optional form, the agent automatically can make any health care decision, choose providers, choose where your parent lives when it relates to health care needs, and review medical records. Deciding on organ donation and what happens to your parent's body after death are powers your parent must initial to grant. If your parent names no agent, they "MUST complete, at a minimum, Part II (B)," the treatment wishes section.

When does it take effect?

A 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, psychiatrist, or psychologist and filed in the principal's medical record," and it stops applying if your parent recovers capacity (N.D.C.C. 23-06.5-03). Your parent can instead authorize the agent to act "even though the principal retains capacity to make health care decisions."

The agent decides by your parent's known wishes and religious or moral beliefs, or, if those are unknown, by your parent's best interests. An agent can't consent to psychosurgery, abortion, sterilization or a mental health admission of more than 45 days without a court order or proceeding. A directive that tells providers to withhold care doesn't apply to "emergency treatment performed in a prehospital situation."

What happens if your parent has no health care directive?

Relatives and others can consent for your parent in an order set by statute, starting with a spouse after any agent or guardian. Under N.D.C.C. 23-12-13, unless a court decides otherwise, these people may consent for an incapacitated patient, in this order:

1. a health care agent under a directive, including one made in another state;
2. a court-appointed guardian or custodian;
3. a spouse who has maintained significant contact;
4. an adult child who has maintained significant contact;
5. a parent, including a stepparent who has maintained significant contact;
6. an adult sibling, then a grandparent, then an adult grandchild, each with significant contact;
7. a close relative or friend, at least 18, with significant contact;
8. "An interdisciplinary team consisting of at least three health care professionals."

The person consenting must first decide in good faith whether your parent would consent, and otherwise go by your parent's best interests. Someone lower on the list can't consent if someone higher has refused. If your parent or an interested person objects to the finding of incapacity, a court hearing decides it. See conservatorship and guardianship.

How do you revoke a North Dakota health care directive?

Under N.D.C.C. 23-06.5-07, a directive is revoked by your parent notifying the agent or a health care or long-term care provider "orally, or in writing, or by any other act evidencing a specific intent to revoke the directive," or by signing a new directive. A provider told of a revocation must record it and notify the agent and the care team.

If your parent named their spouse as agent, a divorce revokes that appointment unless the directive says otherwise.

Should you register it, and what about POLST?

Registering is optional. The state's Health Care Directive Registry, developed by the North Dakota Health Information Network, lets residents "securely store and share their health care directives," and it also accepts a POLST (Physician Orders for Life Sustaining Treatment). Under N.D.C.C. 23-06.5-19, not registering "does not affect the validity of the health care record." A copy of a directive "must be given the same effect as an original."

Frequently asked questions

Does a living will need to be notarized in North Dakota?

No, a notary is one of two options. Under N.D.C.C. 23-06.5-05, a health care directive's signature must be verified by a notary or by at least two witnesses who are 18 or older. Either way, the notary or witnesses can't be the agent, your parent's spouse, heirs or relatives, creditors, or the attending physician.

Can a family member witness a health care directive in North Dakota?

No. The notary or any witness can't be your parent's spouse or heir, or anyone related to them by blood, marriage or adoption. That excludes adult children and in-laws. A friend or neighbor can witness if they won't inherit, have no claim on the estate, aren't paying for your parent's medical care and aren't the attending physician.

Where can I get a North Dakota living will form?

The statute prints an optional health care directive form in N.D.C.C. 23-06.5-17, and any form that meets chapter 23-06.5 works. The state courts don't provide a printable version; their guide suggests copying the statutory text into a word processor or asking your parent's health care provider for a form.

Who makes medical decisions in North Dakota if there's no directive?

N.D.C.C. 23-12-13 sets an order: a health care agent, then a guardian, then a spouse, an adult child, a parent, an adult sibling, a grandparent, an adult grandchild, and a close relative or friend, each having maintained significant contact. Last comes a team of at least three health care professionals.

Is a living will from another state valid in North Dakota?

Yes, if it was signed in compliance with that state's law. Under N.D.C.C. 23-06.5-11, North Dakota's chapter "does not limit the enforceability of a health care directive or similar instrument executed in another state or jurisdiction in compliance with the law of that state or jurisdiction." An agent named under another state's law is also first on the consent priority list.

Can my parent change their mind after signing?

Yes. Your parent can revoke a directive by telling the agent or a health care provider, orally or in writing, by any other act showing a specific intent to revoke, or by signing a new one. When two directives conflict, the later one controls under N.D.C.C. 23-06.5-13.

Getting started

A health care directive only helps if it's signed while your parent can sign it, before a notary or two witnesses who aren't family. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.

Build your plan

Sources

• N.D.C.C. chapter 23-06.5, Health Care Directives: definitions (23-06.5-02), agent authority and when it applies (23-06.5-03), who can't be agent (23-06.5-04), signing and witnesses (23-06.5-05), revocation (23-06.5-07), out-of-state directives (23-06.5-11), presumptions (23-06.5-13), older documents (23-06.5-15), the optional form (23-06.5-16, 23-06.5-17) and the registry (23-06.5-19).
• N.D.C.C. chapter 23-12: who may consent for an incapacitated patient without a directive (23-12-13).
• North Dakota Legal Self Help Center, Health Care Directives Research Guide: plain-language overview and where to find a form.
• North Dakota Health Information Network, ND Health Care Directive Registry: the state registry for directives and POLST forms.

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