North Dakota Health Care Directive for a Disabled Adult

The Unified Directive Under NDCC 23-06.5

North Dakota combines what other states split into two separate documents — the medical power of attorney and the living will — into a single unified Health Care Directive under NDCC Chapter 23-06.5. One document does both jobs: it names a health care agent to make medical decisions and records the person's instructions about end-of-life care.

For families of young adults with disabilities, this directive is often the single most important document to execute around the 18th birthday. The moment a child turns 18, parents no longer automatically hold the legal authority they had while the child was a minor. Without a health care directive naming a parent as agent or another valid authorization, a provider may require the young adult's permission before sharing information or accepting parental decisions.

How the Springing Power Works

Unlike a durable power of attorney (which can take effect immediately), North Dakota's health care directive uses a springing mechanism. The agent's authority only activates when the attending physician, a psychiatrist, or a psychologist certifies in writing — in the patient's medical record — that the patient lacks the capacity to make or communicate health care decisions.

This design protects the young adult's autonomy. In day-to-day situations where they can express a preference, their voice controls. The agent steps in only during a genuine medical crisis or when the individual genuinely cannot participate in the decision.

For many families, the springing trigger is actually reassuring. It means the directive doesn't hand over medical authority preemptively — it reserves it for the situations that genuinely require it.

Executing the Directive

The person signing the directive (the principal) must have capacity to understand what they're authorizing at the time of signing. The document must be:

• Signed and dated by the principal
• Verified by either a notary public OR two qualified witnesses

If witnesses are used instead of a notary, at least one witness must not be an employee of any health care or long-term care provider giving direct care to the principal. Neither witness can be the designated agent, a spouse, an heir, or a creditor of the principal. The notary, however, may be an employee of the principal's health care provider — a useful exception when executing the directive during an existing medical appointment.

Short Form vs. Long Form

North Dakota offers both a short-form and long-form health care directive. The short form covers the essential components: naming an agent, granting medical decision-making authority, and providing basic life-sustaining treatment preferences. The long form adds more detailed treatment instructions and allows for greater specificity about care preferences.

Either form is legally valid. The short form works well for most transition-age families because the primary goal is naming the parent as agent. The long form makes more sense when the young adult has specific medical conditions or treatment preferences they want documented.

What the Agent Can and Cannot Do

The health care agent's authority covers medical treatment decisions, access to medical records, and facility placement decisions. The agent can consent to, refuse, or withdraw treatment on the principal's behalf once the springing trigger is met.

The agent cannot override a decision the principal is currently capable of making. If the young adult can express a preference about their treatment, that preference controls even if the agent disagrees. The directive also cannot authorize anything illegal or order the withdrawal of care in a way that contradicts the directive's own written instructions.

Health Care Directive vs. Guardianship

A health care directive handles medical decision-making without court involvement. A guardian with medical authority does the same thing but through a court order, at a cost of $160 in filing fees plus $1,000–$3,000 in GAL and evaluator fees, with five-year reviews.

For a young adult who can understand the concept of naming someone to make medical decisions during emergencies, the health care directive is the appropriate tool. Guardianship over medical decisions should only be considered when the individual cannot understand or execute the directive at all.

Combined with a durable financial power of attorney, a supported decision-making agreement, and representative payee status for SSI, a health care directive covers most of what families are actually seeking when they consider guardianship. The North Dakota Guardianship & Alternatives Guide lays out exactly which combination of documents covers which decisions, so families can build the minimum legal structure that protects their young adult without removing rights unnecessarily.

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