Does a North Dakota health care directive have to be notarized?

No. North Dakota Century Code 23-06.5-05(2) lets you choose: a notary public can verify your signature, or at least two subscribing witnesses who are 18 or older can. You need one option, not both. The optional statutory form in 23-06.5-17 prints a notary block and a two-witness block for that reason.

Who cannot witness a North Dakota health care directive?

Under 23-06.5-05(2), neither the notary nor any witness may be your agent, your spouse or heir, a relative by blood, marriage or adoption, a person entitled to part of your estate under a will or deed or by law, anyone with a claim against your estate, a person directly financially responsible for your medical care, or your attending physician. At least one of two witnesses also must not be a health care or long-term care provider giving you direct care, or an employee of one. A notary may be such an employee.

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

Section 23-12-13(2) sets the order for an incapacitated adult: a health care agent, then a court-appointed guardian or custodian, then a spouse, an adult child, a parent, an adult sibling, a grandparent, an adult grandchild, a close adult relative or friend, and last an interdisciplinary team of at least three health care professionals. Every family class except a parent requires that the person has kept in close contact with the patient (a stepparent needs that contact too), and a lower class cannot consent if a higher one has refused.

Is a health care directive from another state valid in North Dakota?

Yes, if it was executed in compliance with the law of the state where you signed it. Section 23-06.5-11 says chapter 23-06.5 does not limit the enforceability of such a document, and 23-12-13(2)(a) puts an agent named in a similar out-of-state instrument first in the surrogate list.

North Dakota Health Care Directive

Q: When does a North Dakota health care directive take effect?

Under 23-06.5-03(3), a directive, including your agent's authority, operates only when you lack capacity to make health care decisions, as certified in writing by your attending physician, psychiatrist or psychologist and filed in your medical record. It stops when you recover capacity. Section 23-06.5-03(4) lets you say in the directive that your agent may act even while you still have capacity.

Q: Is a living will separate from a health care directive in North Dakota?

No. North Dakota uses one document. Section 23-06.5-02(5) defines a health care directive as a written instrument that includes health care instructions, a power of attorney for health care, or both. The instructions are the living-will part, and the agent appointment is the health care power of attorney part.

Q: Can I sign a North Dakota health care directive electronically?

Yes, since August 1, 2025. Chapter 59-22, created by 2025 SB 2127, treats an advance directive as a nontestamentary estate planning document (59-22-01(5)(a)(7)). Under 59-22-09(2), a witness who must be present can meet that rule through electronic presence, meaning real-time communication as if in the same room. The chapter does not apply if your directive itself rules out electronic records or signatures (59-22-03(2)).

A North Dakota health care directive is one written document that can name a health care agent, give health care instructions, or both, under chapter 23-06.5 of the North Dakota Century Code. To be valid it must be in writing, dated, state your name and be signed, and your signature must be verified by a notary public or by two witnesses aged 18 or older (NDCC 23-06.5-05). It takes effect only when your attending physician, psychiatrist or psychologist certifies in writing that you lack capacity, unless you say otherwise.

Read this page as a plain map of the North Dakota Century Code as the Legislative Council published it after the 2025 session, then have a North Dakota attorney draft or review what you sign. It is not legal advice.

One Document, Two Jobs

North Dakota does not split planning into a separate living will and a separate medical power of attorney. Section 23-06.5-02(5) defines a health care directive as a written instrument that includes one or more health care instructions, a power of attorney for health care, or both. People still search for a "North Dakota living will" or a "North Dakota advance directive", and both answers lead to this one document.

Part	What it does	Statute
Health care agent	An adult you appoint to make any health care decision you could make, subject to limits you write in	23-06.5-02(1), 23-06.5-03(1)
Health care instructions	Your written values, preferences and directions for providers, family and your agent	23-06.5-02(6), 23-06.5-03(1)
Anatomical gift	An optional organ and tissue donation choice inside the same document	23-06.5-05.1(5)

A directive with no agent is still valid if it contains a health care instruction (23-06.5-05(1)(f)). The optional statutory form tells you that if you skip Part I (the agent), you must complete at least Part II (B), the section on the care you want and do not want.

What Your Agent Can and Cannot Do

Your agent gets authority to make "any and all health care decisions" you could make, subject to the chapter and any express limits you set (23-06.5-03(1)). A health care decision includes consent, refusal and withdrawal of consent to care, and the definition names orders not to resuscitate (23-06.5-02(4)).

Your agent decides after talking with your attending physician and other providers. The agent follows your wishes and religious or moral beliefs, whether you stated them out loud or in the directive. If your wishes are unknown, the agent acts in your best interests, taking your personal values into account (23-06.5-03(2)). While that authority is active, the agent may see your medical and hospital records, sign releases to get them, and consent to their disclosure, unless you limit that right (23-06.5-08).

Here are the limits the statute sets:

Court-order procedures. An agent may not consent to admission to a mental health facility or a state-run facility for more than 45 days without a mental health proceeding or other court order, or to psychosurgery, abortion or sterilization unless a court approves it first (23-06.5-03(6)).
Who may not serve. A person cannot act as your agent while serving as your health care provider or long-term care services provider, or as a nonrelative employee of either (23-06.5-04).
Divorce. If your spouse is your agent, a divorce revokes that appointment unless your directive says otherwise (23-06.5-07(3)).

Section 23-06.5-05.1 lists extra provisions you may add, including alternate agents, directions for joint agents on how they decide, limits on records access, limits on nominating your agent as guardian, instructions on artificial nutrition and hydration, and permission for your agent to act while you still have capacity.

Signing a North Dakota Health Care Directive

Section 23-06.5-05(1) sets six requirements. The directive must:

be in writing,
be dated,
state your name,
be signed by you while you have capacity, or by another person you authorize to sign for you,
carry verification of that signature by a notary public or by witnesses, and
include a health care instruction, a power of attorney for health care, or both.

If you are physically unable to sign, someone else may write your name in your presence and at your express direction (23-06.5-05(2)).

Notary or two witnesses

You pick one verification method. A notary works alone. Otherwise you need at least two subscribing witnesses who are at least 18. The statute then adds rules that most online forms leave out:

At least one witness must not be a health care or long-term care provider giving you direct care on the signing date, or an employee of one.
A notary may be an employee of a provider giving you direct care.
The notary and every witness may not be, at signing: your agent; your spouse or heir; a person related to you by blood, marriage or adoption; a person entitled to any part of your estate under an existing will or deed or by law; anyone with a claim against your estate; a person directly financially responsible for your medical care; or your attending physician.

That list rules out most family members and anyone who inherits from you. A neighbor, a coworker or a friend who is not named in your will usually fits.

The optional statutory form

Section 23-06.5-17 prints a full form with four parts: appointing an agent and an optional alternate, health care instructions, an anatomical gift, and a signing section with a notary option and a two-witness option. Section 23-06.5-16 says the form "may be used and is an optional form, but not a required form", and another form works if it complies with the chapter. The form's signing section also tells you to date and sign any pages you attach at the same time you sign the directive.

Signing electronically

Since August 1, 2025, chapter 59-22 (2025 SB 2127) covers advance directives as nontestamentary estate planning documents (59-22-01(5)(a)(7)). An electronic signature and an electronic record count (59-22-06), and a witness who must be present can meet that rule through electronic presence, meaning people in different places who can communicate in real time as if they were in the same room (59-22-09). Whether a notary may act remotely is a question for North Dakota's notary law, which this page does not cover.

When the Directive Takes Effect

A North Dakota directive does not wait for a terminal diagnosis. Section 23-06.5-03(3), amended by 2025 SB 2297, makes the directive and your agent's authority operate only when you lack capacity to make health care decisions, as certified in writing by your attending physician, psychiatrist or psychologist and filed in your medical record. It stops being effective once you recover capacity.

Capacity means you can understand and appreciate the nature and consequences of a health care decision, including its benefits, harms and reasonable alternatives, and you can communicate a decision (23-06.5-02(3)).

You can change that trigger. Under 23-06.5-03(4), your directive may let your agent make decisions even while you keep capacity, under any conditions you set. You can revoke that permission the same way you revoke a directive.

Once it operates, your providers must follow your agent's decisions and your instructions to the extent they fit the chapter (23-06.5-09). Four limits apply:

Conscience objections. A provider may decline for reasons of conscience, but must take all reasonable steps to transfer you to a willing provider and keep caring for you until then (23-06.5-09(2)).
Comfort care. Your directive does not change a provider's duty to treat you for comfort, care or pain relief (23-06.5-09(4)).
Pregnancy. Care must continue for a pregnant principal unless the attending physician and an obstetrician who has examined her certify that it will not allow continued development and live birth, or will cause her physical harm or pain that medication cannot relieve (23-06.5-09(5)).
Nutrition and hydration. If your directive is silent, tube feeding and fluids may be withheld only when the attending physician finds they cannot be assimilated, would be physically harmful or would cause unreasonable pain (23-06.5-09(6)). Say what you want in writing.

A directive that tells providers to withhold care does not apply to emergency treatment performed in a prehospital situation (23-06.5-13(13)).

Who Decides Without a Directive

If you have no directive, North Dakota does not leave the choice to whoever arrives first. NDCC 23-12-13, rewritten by 2025 SB 2297, sets the order for an incapacitated adult unless a court decides otherwise:

a health care agent under a directive, or under a similar instrument from another state,
a court-appointed guardian or custodian under chapter 30.1-28,
a spouse,
an adult child,
a parent, including a stepparent,
an adult sibling,
a grandparent,
an adult grandchild,
a close relative or friend who is at least 18,
an interdisciplinary team of at least three health care professionals.

The spouse, adult child, adult sibling, grandparent, adult grandchild and close relative or friend classes each require that the person has stayed in close contact with you, and a stepparent counts only with that contact. The statute writes this contact test into each of those classes. A provider must make reasonable efforts to reach the highest available class, and nobody lower may consent if someone higher has refused (23-12-13(4)).

This list covers all informed consent to health care, not only life support. Anyone acting under it must first decide in good faith whether you would consent, and if that cannot be known, act in your best interests (23-12-13(5)). The same court-order limits on sterilization, abortion, psychosurgery and long mental health admissions apply (23-12-13(6)).

The statute has no rule for a tie. It says nothing about adult children who disagree with each other, which is one of the best reasons to name an agent yourself. For the cases where a directive still does not cover everything, see when a guardian is still needed. An agent named in your directive takes precedence over a guardian's medical authority unless a court decides otherwise (23-06.5-13(1)).

Changing or Revoking Your Directive

You can revoke a directive by telling your agent or a health care or long-term care provider, orally, in writing, or by any other act showing you intend to revoke it, or by signing a new directive (23-06.5-07). A provider who learns of a revocation must record it in your medical record right away and notify your agent, your attending physician and your care staff.

Where two directives conflict, the one signed later controls (23-06.5-13(2)). The law presumes you had capacity to sign and to revoke, and presumes a directive stays active until you change it, unless someone proves otherwise by clear and convincing evidence (23-06.5-13(3), (6)). A copy has the same effect as the original (23-06.5-13(8)).

Your agent can step aside too. Before you become incapacitated, the agent withdraws by notice to you; after that, by notice to your attending physician, who must record it (23-06.5-06).

The State Registry

Section 23-06.5-19 lets the state information technology department run a health care record registry on a website, where you or your agent can file a directive or a revocation for a reasonable fee. Filing is optional: skipping it does not affect a directive's validity, and providers do not have to search the registry (23-06.5-19(3), (5)). The statute uses "may establish", and we could not confirm on an official state page that the registry operates today, so check with the department before you rely on it.

POLST and Do Not Resuscitate Orders

No section of the North Dakota Century Code we read creates a POLST form or an out-of-hospital do not resuscitate order. The only statutory mention of a medical order for life-sustaining treatment is in the electronic-documents chapter (59-22-01(5)(a)(7)). If you are seriously ill, ask your doctor what medical order form your hospital and local ambulance service use. That order sits alongside your directive and does not replace it.

Tampering Is a Crime

Under 23-06.5-18, altering or forging a directive, or hiding or destroying a revocation, without your permission and with the intent and effect of hastening your death through withheld care is a class C felony. Altering, forging, hiding or destroying a directive, or altering or forging a revocation, without permission is a class A misdemeanor. No one may require or forbid a directive as a condition of insurance or health care (23-06.5-13(11)).

Next Steps

Decide who should be your agent and at least one alternate, and talk with them.
Write your instructions, including your wishes on tube feeding and fluids.
Sign before a notary, or before two qualified adult witnesses who meet 23-06.5-05(2).
Give copies to your agent and your doctors, and ask that one go into your medical record.
Pair it with a North Dakota power of attorney for financial decisions, then review the rest of the plan.

Sources:

Title: NDCC 23-06.5-03, Health care directive. Publisher: North Dakota Legislative Council, North Dakota Century Code. Publication Date: Not listed. URL: https://ndlegis.gov/cencode/t23c06-5.pdf#nameddest=23-06p5-03
Title: NDCC 23-06.5-04, Restrictions on who can act as agent. Publisher: North Dakota Legislative Council, North Dakota Century Code. Publication Date: Not listed. URL: https://ndlegis.gov/cencode/t23c06-5.pdf#nameddest=23-06p5-04
Title: NDCC 23-06.5-05, Health care directive requirements - Execution and witnesses. Publisher: North Dakota Legislative Council, North Dakota Century Code. Publication Date: Not listed. URL: https://ndlegis.gov/cencode/t23c06-5.pdf#nameddest=23-06p5-05
Title: NDCC 23-06.5-07, Revocation. Publisher: North Dakota Legislative Council, North Dakota Century Code. Publication Date: Not listed. URL: https://ndlegis.gov/cencode/t23c06-5.pdf#nameddest=23-06p5-07
Title: NDCC 23-06.5-09, Duties of provider. Publisher: North Dakota Legislative Council, North Dakota Century Code. Publication Date: Not listed. URL: https://ndlegis.gov/cencode/t23c06-5.pdf#nameddest=23-06p5-09
Title: NDCC 23-06.5-13, Presumptions and application. Publisher: North Dakota Legislative Council, North Dakota Century Code. Publication Date: Not listed. URL: https://ndlegis.gov/cencode/t23c06-5.pdf#nameddest=23-06p5-13
Title: NDCC 23-06.5-17, Optional health care directive form. Publisher: North Dakota Legislative Council, North Dakota Century Code. Publication Date: Not listed. URL: https://ndlegis.gov/cencode/t23c06-5.pdf#nameddest=23-06p5-17
Title: NDCC 23-06.5-19, Health care record registry - Fees. Publisher: North Dakota Legislative Council, North Dakota Century Code. Publication Date: Not listed. URL: https://ndlegis.gov/cencode/t23c06-5.pdf#nameddest=23-06p5-19
Title: NDCC 23-12-13, Individuals authorized to provide informed consent to health care for incapacitated patients and minors - Priority. Publisher: North Dakota Legislative Council, North Dakota Century Code. Publication Date: Not listed. URL: https://ndlegis.gov/cencode/t23c12.pdf#nameddest=23-12-13
Title: NDCC 59-22-09, Witnessing and attestation. Publisher: North Dakota Legislative Council, North Dakota Century Code. Publication Date: Not listed. URL: https://ndlegis.gov/cencode/t59c22.pdf#nameddest=59-22-09

It is not legal advice.