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Health
Instrument: Power of Attorney for Health Care (POAHC)
What is it for?
A “power of attorney for health care” (POAHC) is a written instrument that allows an adult (the “principal”) to appoint another (the “agent”) to make health care decisions on behalf of a principal either only when the principal lacks capacity to do so or even while the principal retains capacity to make health care decisions, depending on the terms of the POAHC.
What does it do?
A POAHC empowers the agent to make health care decisions on behalf of a principal. These powers include either requesting or giving, refusing, or withdrawing consent to any care, treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition.
Examples of health care decisions that agents may make include: selection and discharge of health care providers and institutions; approval or disapproval of diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care; and establishment of an individual’s abode within or without the state and personal security safeguards for an individual, to the extent decisions on these matters relate to the health care needs of the individual. N.D. Cent. Code Ann. § 23-06.5-02(4). An agent cannot, however, consent to admission to a mental health facility or state institution for a period of more than 45 days or to psychosurgery, abortion, or sterilization. N.D. Cent. Code Ann. § 23-06.5-03(4).
The agent’s authority may either be limited to periods when the principal lacks capacity to make health care decisions or become effectively immediately, even if the principal retains that capacity. Even if the POAHC allows the agent to make decisions while the principal retains capacity, then the agent’s authority can be limited by the terms of the POAHC itself. N.D. Cent. Code Ann. § 23-06.5-03(4).
An agent must consult with the attending physician of the principal and other related health care providers before making a health care decision. When making a health care decision on behalf of the principal, the agent must make decisions in accordance with the agent’s knowledge of the principal’s wishes and religious or moral beliefs. N.D. Cent. Code Ann. § 23-06.5-03(2).
The POAHC is one kind of “health care directive.” Another kind is “health care instructions.” Health care instructions allow a principal to provide written guidance to health care providers, others assisting with health care, family members, and a health care agent. These instructions are optional and may be included within a POAHC. N.D. Cent. Code Ann. § 23-06.5-03(1).
How does one make it?
A POAHC must be written, dated, state the principal’s name, and signed by either the principal or another authorized by the principal to sign on their behalf. The POAHC must also be either notarized or witnessed by two adults. N.D. Cent. Code Ann. § 23-06.5-05(1). The agent cannot also serve as witness or notary public, nor may the agent be a health care provider for the principal. N.D. Cent. Code Ann. §§ 23-06.5-04 & 05. An agent must accept their appointment in writing in order for their appointment to be effective. N.D. Cent. Code Ann. § 23-06.5-06.
When does it come into effect?
The agent’s authority POAHC generally becomes effective when a patient lacks capacity to make health care decisions. “Capacity to make health care decisions” means the ability to understand and appreciate the nature and consequences of a health care decision, including the significant benefits and harms of and reasonable alternatives to any proposed health care, and the ability to communicate a health care decision. N.D. Cent. Code Ann. § 23-06.5-02(3).
In addition, if the POAHC specifically states that an agent can make decisions even while the principal retains capacity to make health care decisions, then the agent’s authority begins immediately. N.D. Cent. Code Ann. § 23-06.5-03(4).
How long does it last?
A POAHC generally lasts unless the principal or agent dies, revokes the POAHC, the principal regains capacity, or the principal executes a subsequent POAHC. N.D. Cent. Code Ann. § 23-06.5-07.
How does one end it?
The principal may revoke the POAHC either in writing, orally, or by any other act evidencing a specific intent to revoke it. A principal may also end a POAHC by executing a subsequent POAHC. N.D. Cent. Code Ann. § 23-06.5-07(1).
What does an example look like?
North Dakota provides a sample POAHC form at N.D. Cent. Code Ann. § 23-06.5-17.
What else should one know?
A list of suggested provisions to include in an POAHC are listed at N.D. Cent. Code Ann. § 23-06.5-05.1.
Last updated June 2022
General
Instrument #1: Supported Decision-Making Agreement (SDMA)
What is it for?
The “supported decision-making agreement” (SDMA) allows an adult (the “named individual”) to choose one or more other adults (the “supporter(s)”) to assist the adult with making decisions about health care, residence, finances, education, legal affairs, or work. N.D. Cent. Code Ann. § 30.1-36-01(4).
What does it do?
The SDMA authorizes one or more supporters to assist the named individual with a range of decisions about the individual’s life. This assistance is for the purpose of maximizing the named individual’s ability to make informed, voluntary choices. N.D. Cent. Code Ann. § 30.1-36-01(4).
This assistance can take the following forms:
a. identifying, collecting, and organizing documents that apply to a decision the named individual is considering or information that may be helpful to the named individual when making a decision;
b. helping the named individual understand documents;
c. identifying available options or the advantages and disadvantages of those options;
d. communicating any decision by the named individual to others at the request of the named individual; or
e. explaining the decision-making process allowed under this subsection to the court in any proceeding to create or modify a guardianship or conservatorship for the named individual. N.D. Cent. Code Ann. § 30.1-36-01(3).
An SDMA does not prevent the named individual from getting decision-making assistance from someone who is not a supporter named in an SDMA. Nor does it prevent the individual from making decisions independently without consulting a named supporter, or accessing the individual’s records. N.D. Cent. Code Ann. § 30.1-36-04(5).
An SDMA does not, however, give a supporter the ability to act as a surrogate decision-maker or to sign documents on behalf of the named individual. N.D. Cent. Code Ann. § 30.1-36-04(7).
The same named individual can have multiple SDMAs in effect at the same time. N.D. Cent. Code Ann. §§ 30.1-36-04(3-4).
Third parties are generally required to rely on a duly executed SDMA unless they believe the named individual is being abused, neglected, or exploited by the supporter or know that an SDMA is either invalid or has been terminated. N.D. Cent. Code Ann. § 30.1-36-08(1).
How does one make it?
The SDMA must be in writing and both signed and dated by the named individual and the supporter(s). Also, either a notary public or two qualified witnesses must verify the signatures. N.D. Cent. Code Ann. § 30.1-36-07.
When does it come into effect?
Presumably, supporters’ authority comes into effect immediately when the SDMA is completed.
How long does it last?
Presumably, until the named individual dies or terminates the SDMA, or if the supporter(s) resign or a court orders the SDMA to be terminated.
How does one end it?
The named individual can end an SDMA at any time by notifying the supporter(s) orally, in writing, through an assistive technology device, or by any other act showing a specific intent to terminate the SDMA. A supporter can also end the SDMA by giving the named individual written notice of the supporter’s resignation. If an SDMA names more than one supporter, then the SDMA remains in effect with regard to the supporters who have not resigned. N.D. Cent. Code Ann. § 30.1-36-05.
What does an example look like?
North Dakota does not have a statutory SDMA form. Disability Rights North Dakota has developed an SDMA template available here.
What else should one know?
The existence or contents of an SDMA cannot be used as evidence of incapacity or incompetence. N.D. Cent. Code Ann. § 30.1-36-04(6).
Instrument #2: Durable Power of Attorney (DPOA)
What is it for?
A “durable power of attorney” (DPOA) allows an adult (the “principal”) to authorize another person (the “attorney in fact”) to make decisions concerning the principal’s property or other affairs on the principal’s behalf.
What does it do?
The DPOA transfers decision-making authority over the principal’s property or other affairs from the principal to the attorney in fact. All acts done by an attorney in fact during any period while the principal is unable to make decisions have the same effect and bind the principal as if the principal were to have done so. N.D. Cent. Code Ann. § 30.1-30-02.
How does one make it?
The DPOA must be in writing and contain the words “This power of attorney is not affected by subsequent disability or incapacity of the principal or by lapse of time,” or “This power of attorney becomes effective upon the disability or incapacity of the principal,” or similar words showing the intent of the principal to confer decision making authority to their attorney in fact even if the principal is unable to make those decisions. N.D. Cent. Code Ann. § 30.1-30-01.
North Dakota does not have statutory witness or notarization requirements for DPOAs.
When does it come into effect?
Presumably, the attorney in fact’s authority takes effect either immediately or when the principal subsequently enters into a state of “disability or incapacity,” depending on the terms of the DPOA. The process for determining the principal’s incapacity should be stated in the DPOA. N.D. Cent. Code Ann. § 30.1-30-01.
“Incapacitated person” means any adult person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, or chemical dependency to the extent that the person lacks capacity to make or communicate responsible decisions concerning that person’s matters of residence, education, medical treatment, legal affairs, vocation, finance, or other matters, or which incapacity endangers the person’s health or safety. N.D. Cent. Code Ann. § 30.1-26-01(2).
“Disability” for the purposes of a DPOA means the principal’s inability to manage their property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, or chronic intoxication. N.D. Cent. Code Ann. § 30.1-29-01(2)(a).
How long does it last?
A DPOA lasts until the principal dies, revokes the DPOA, or terminates the agency as to the attorney in fact. N.D. Cent. Code Ann. § 30.1-30-04.
How does one end it?
A principal may revoke the designation of an attorney in fact at any time. The principal’s revocation becomes effective when the principal notifies the attorney in fact. N.D. Cent. Code Ann. § 30.1-30-04.
What does an example look like?
North Dakota does not have a statutory DPOA form. The North Dakota Court System provides a form here.
What else should one know?
North Dakota’s DPOA is not based on the Uniform Power of Attorney Act.
Last updated June 2022