Advance Directives in North Dakota

Most people operate under the mistaken belief that planning for the possibility of incapacity is a concern for the elderly. The reality is that just over one in four of today’s 20-year-olds will become disabled before they retire. Many of those people will suffer temporary or permanent incapacity as part of their disability.

While it is true that the risk of developing Alzheimer’s or another form of age-related dementia that leads to incapacity does increase with age, a catastrophic accident or serious illness could also lead to your incapacity at any age.

An advance directive is a written statement of a person’s wishes regarding medical treatment that is created and executed to ensure those wishes are carried out should the person be unable to communicate them to a doctor. An advance directive can also appoint someone to make healthcare decisions for you if you are unable to make them yourself due to temporary or permanent incapacity.

North Dakota refers to an advance directive as a “Health Care Directive.” Like most states, North Dakota recognizes your right to execute both a Living Will and a Health Care Power of Attorney as part of your Health Care Directive.

The Living Will portion of a North Dakota Health Care Directive allows you (the “Principal”) to make decisions ahead of time about end-of-life, life-sustaining, or life-prolonging medical treatment. For example, you can decide whether first responders should attempt to resuscitate you, whether you consent to the use of medical equipment to prolong your life, and whether you want pain medication administered if you are suffering from an irreversible and terminal condition.

This part of an advance directive allows you to decide who will make important healthcare decisions for you if you are unable to make them yourself at any point. In North Dakota, any adult can be your Agent in a health care Power of Attorney except:

• Your health care provider.
• A nonrelative of yours who is an employee of your health care provider.
• Your long-term care services provider.
• A nonrelative of yours who is an employee of your long-term care services provider.

One of the most important reasons to choose an Agent in an advance directive is that without an advance directive in place a judge may have to appoint someone to make decisions for you. Not only could the judge’s decision result in someone you do not want making decisions for you doing just that, but family members could end up in a costly and emotional court battle over the issue.

In the absence of a Living Will, there is no guarantee that your wishes regarding end-of-life medical treatment will be honored. You may have discussed the issue at length with a spouse or adult child; however, that person may not be the one making decisions when the time comes. Even if he/she is the decision-maker, it may be too difficult to honor your wishes.

According to North Dakota law, 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