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Power of Attorney in North Dakota: Durable Wording, Notary, Gifts and the Court Form

A North Dakota power of attorney is durable only if it says so, and a broad one lets the agent make gifts unless it's limited. Here is what N.D.C.C. chapter 30.1-30 requires and how the courts' free form works.

By naveen · Updated · How we research our guides

What to know

A North Dakota power of attorney is a written appointment of an agent under N.D.C.C. chapter 30.1-30, and it survives your parent's incapacity only if it contains durability words. Under N.D.C.C. 30.1-30-01, it's durable only when "the writing contains the words" saying so, such as "This power of attorney is not affected by subsequent disability or incapacity of the principal or by lapse of time." Without that kind of language, the court system's Legal Self Help Center explains, "A Power of Attorney ends when the Principal becomes unable to make their own decisions."

What is a durable power of attorney in North Dakota?

A durable power of attorney in North Dakota is a written document in which your parent (the principal) names an attorney in fact, also called an agent, to handle money and property, and which keeps working if your parent loses capacity. Acts done under it during incapacity bind your parent "as if the principal were competent and not disabled" (N.D.C.C. 30.1-30-02). Unless it states an end date, it doesn't expire with time.

Chapter 30.1-30 is titled the Uniform Durable Power of Attorney Act, and it has six sections. The state's Title 30.1 chapter list shows no newer Uniform Power of Attorney Act. For the reasons to set one up early, see our guide to power of attorney for an elderly parent.

Does a North Dakota power of attorney have to say it's durable?

Yes, and it's the first thing to check in an existing document. The statute recognizes two sample phrases, or "similar words showing the intent of the principal that the authority conferred is exercisable notwithstanding the principal's subsequent disability or incapacity":

Wording in the documentWhat it does
"This power of attorney is not affected by subsequent disability or incapacity of the principal or by lapse of time"Starts now and keeps working after incapacity
"This power of attorney becomes effective upon the disability or incapacity of the principal"Springing: starts only on incapacity
Neither phrase, nor similar wordsNot durable; ends if your parent can no longer make decisions

If your parent already has a power of attorney, it's worth reading it with them to find this language. Chapter 30.1-30 doesn't say how incapacity is shown for a springing power, so it's worth checking whether a springing document spells that out.

Does a power of attorney need to be notarized in North Dakota?

Not under chapter 30.1-30, which requires a writing with the durability language and says nothing about witnesses, a notary or a form. Two official sources still point to a notary:

North Dakota prints a separate acknowledgment certificate for an attorney in fact signing a deed for the principal (N.D.C.C. 47-19-29).

Is there an official North Dakota power of attorney form?

The statute doesn't include one, but the North Dakota courts' Legal Self Help Center offers a free General Durable Power of Attorney form, along with a revocation form. Its instructions say the form "may be used by an individual 18 years of age or older to appoint someone to handle their financial or other decisions," and that "ND Legal Self Help Center staff and court employees can’t help you fill out the form(s)."

The court form is broad. Its first paragraph is a general grant of power over any matter, and it lists collecting money, selling and managing property, including homestead property, and signing documents. Your parent checks one box: effective now and durable, or effective only on incapacity.

Can the agent make gifts?

If the power of attorney is broad, yes. N.D.C.C. 30.1-30-06 says that if a power of attorney authorizes the agent "to perform any act that the principal might or could do" or shows an intent to give "full power to handle the principal's affairs or deal with the principal's property, the attorney in fact or agent may make gifts." The gifts "may be in any amount of any of the principal's property to any individual" or to qualifying charities.

Your parent can change that "by express words in the power of attorney," either authorizing or limiting gifts. Since the court form uses a general grant, a parent who doesn't want gifts made should say so in the document. Our guide to protecting a parent from scams covers the warning signs any agent should know.

What does the agent have to do?

The agent must keep your parent informed and stay within their actual authority, under North Dakota's general agency law; chapter 30.1-30 itself lists no agent duties and requires no records. That law says, "An agent must use ordinary diligence to keep the agent's principal informed of the agent's acts in the course of the agency" (N.D.C.C. 3-02-12). An agent can never have authority to commit a fraud on the principal (N.D.C.C. 3-02-07).

If a court later appoints a conservator or guardian of the estate, "the attorney in fact is accountable to the fiduciary as well as to the principal," and that fiduciary can revoke or amend the power of attorney (N.D.C.C. 30.1-30-03). Your parent can also use a durable power of attorney to nominate a guardian or conservator, and the court follows the most recent nomination "except for good cause or disqualification." See conservatorship and guardianship.

Do banks have to accept a North Dakota power of attorney?

No North Dakota statute we read requires a bank to accept one: chapter 30.1-30 and the agency chapters in Title 3 set no acceptance deadline and no penalty for refusing. They do give the agent a tool: an affidavit stating the agent didn't know of a revocation or of your parent's death or incapacity is conclusive proof of "nonrevocation or nontermination of the power at that time" for acts done in good faith (N.D.C.C. 30.1-30-05).

When does it end?

It ends when your parent dies or revokes it, when a divorce cancels a former spouse's role as agent, or on incapacity if the document isn't durable:

How do you get a power of attorney for an elderly parent in North Dakota?

Your parent makes and signs it while still able to, and it needs durable wording. The steps:

  1. Talk with your parent about who they'd want acting for them, and who should step in if that person can't.
  2. Choose a document, drafted by an attorney or the court's free form, that contains durable wording.
  3. Go through the powers with your parent, including whether gifts should be allowed, limited or ruled out.
  4. Your parent signs and dates it before a notary or clerk of court.
  5. Give the agent a copy and keep the original somewhere safe.

Timing matters because your parent has to be able to sign. If that moment has passed, the family may need a court process instead. Because of the gift rule and the durability wording, it helps to know what an elder law attorney does.

How do you revoke a power of attorney in North Dakota?

Your parent revokes it in writing while competent, according to the court's Legal Self Help Center; chapter 30.1-30 itself doesn't set a method. The court's page says, "The Principal may revoke the Power of Attorney at any time, as long as the Principal is legally competent. The revocation must be in writing." Its instructions add that "Written notice of the revocation must be given to the Attorney-in-Fact and to anyone who has been given a copy," and that your parent should, if possible, collect and destroy the original and all copies.

How much does a power of attorney cost in North Dakota?

The court form is free, and North Dakota caps the notary's fee. A notary may charge "not more than five dollars per notarial act," plus a travel or technology fee only if agreed in advance (N.D.C.C. 44-06.1-28). The Secretary of State puts it as up to $5 for each notarial act (How to get something notarized). Attorney fees are separate, and none of the sources on this page sets them.

Frequently asked questions

Does a power of attorney need to be notarized in North Dakota?

Chapter 30.1-30 doesn't require a notary or witnesses for a financial power of attorney. The court system's free form is signed before a notary or clerk of court, and a power of attorney used to sign a deed needs an acknowledgment to be recorded. Signing before a notary meets both, and the notary fee is capped at five dollars per act.

Is a North Dakota power of attorney durable automatically?

No. Under N.D.C.C. 30.1-30-01, it's durable only if the writing contains words like "This power of attorney is not affected by subsequent disability or incapacity of the principal," or says it takes effect on incapacity. Without them, it ends when your parent can no longer make their own decisions.

Can a North Dakota power of attorney make medical decisions?

No. The court's instructions say a durable power of attorney "doesn’t include health care decisions." North Dakota uses a health care directive for that, verified by a notary or two qualified witnesses, and relatives can't serve as either. Our guide to the North Dakota living will and health care directive explains it.

Can the agent give away my parent's money?

Possibly. Under N.D.C.C. 30.1-30-06, an agent with full power over your parent's property may make gifts in any amount unless the document limits that authority. Your parent can authorize or restrict gifts with express words in the power of attorney, which is worth deciding before signing a broad form.

Is a power of attorney from another state valid in North Dakota?

Chapter 30.1-30 doesn't have a section on powers of attorney signed in other states, so the statute we read doesn't answer this directly. If your parent has moved to North Dakota, an elder law attorney can review the old document, or your parent can sign a new North Dakota one while able.

Does a power of attorney end when my parent dies?

Yes. The court's Legal Self Help Center says it terminates on the principal's death. An agent or other person who acts in good faith without knowing of the death is protected under N.D.C.C. 30.1-30-04.

Getting started

A power of attorney is time-sensitive, because it needs your parent's signature while they can still give it, and in North Dakota it needs the right durability wording and a clear choice about gifts. The plan this site builds asks four questions, including which state your parents live in, and puts the handful of steps that matter most for your family in order. It's free and takes about 90 seconds.

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Retirement Checklist explains how these documents work; it is not a law firm, and this page is not legal, financial or medical advice. Decisions belong to your parent, ideally with a qualified professional in their state.

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