North Dakota State University
NDSU Extension Service

Decisions for Health in North Dakota:

Advance Directives and Informed Health Care Consent

HE-494 (Revised), July 1994

Debra Pankow
Extension Family Economics Specialist

Everyone, regardless of age, faces the possibility of being incapacitated. Planning for this possibility can be important: it can make a traumatic experience easier for family members, and can assure that the affected individual will get the kind of medical treatment he or she prefers.

Many people have strong feelings about whether or how medical technology should be used to prolong their lives if they become incapacitated by illness or injury. In North Dakota there are two ways they can handle this concern. By creating a durable power of attorney for health care they can specify in advance who should make health care decisions for them if they are unable to make their own, and can also provide guidelines as to the kind of treatments that should or should not be given. In addition, they can create a living will in which they declare what sort of life-prolonging treatment, if any, they want applied to them if they should become terminally ill.

A federal law that took effect December 1, 1991, ensures hospital, hospice, home health and nursing home patients the right to have directives in place. An advance directive is a statement such as a durable power of attorney or living will that outlines treatment guidelines to be followed in the event that a person is unable to make his or her own decisions regarding health care.

Your Right to Make Your Medical Decisions

As a competent adult, you have the right to control decisions about your own health care. You have the right to accept or to refuse any treatment, service or procedure used to diagnose, treat or care for your physical or mental condition.

You have the right to make your own health care decisions as long as you have the ability to understand, first, your medical condition and, second, the benefits, risks and burdens associated with a particular course of treatment and care, and with its alternatives. Your right to decide gives you the right to control, based on your own values, how medical technology is used in caring for your health, including the extent to which it is used, and under what circumstances. Part of this is the right to decide about the artificial giving of food and water (nutrition and hydration).

To exercise your right to make your own medical decisions, you should do the following

  1. Make certain you understand your medical treatment options. If you do not understand something or need more information, ask your health care providers. You have the right to an explanation that is given to you in terms that you actually understand.
  2. If you have ethical or moral concerns about your decisions, you should speak to your minister, rabbi, priest or other advisor, or, perhaps, to members of your family or a close friend.
  3. Discuss your desires with your doctor or health care provider. Make sure that your health care provider understands what you want in the event you are unable to make your own medical decisions.

There may come a time when, due to your mental or physical condition, you are unable to make your own health care decisions. Then your health care providers will look to any prior written advance directives or to family members to make decisions on your behalf. A determination that you are unable to make your own health care decisions must be made by a doctor.

In addition to the two forms of advance directives (living will and durable power of attorney for health care), North Dakota has an informed health care consent law which allows other persons to make health care decisions for you if you are a minor or are unable to make your own medical decisions.

Informed Health Care Consent Law

The informed health care consent law allows certain persons to provide consent for minors or persons who are incapacitated and therefore unable to make or communicate their own medical decisions.

This law prohibits giving consent without a court order for another person's sterilization, abortion, psychosurgery, or admission to a mental health facility for more than 45 days.

The law establishes a priority list of persons who are allowed to provide informed consent to health care providers on behalf of a minor or an incapacitated person.

The law requires that a physician determine that an adult is an incapacitated person before anyone is allowed to consent on that adult's behalf.

This law requires that a person who is allowed to provide informed consent on behalf of someone else must first determine that the individual would have consented to the proposed health care if he or she were able. If such a determination cannot be made, the authorized person may consent only after determining that the proposed health care is in the individual's best interests.

For those who have not signed a durable power of attorney for health care, this law determines who can consent to their medical treatment if they become incapacitated or are under 18 years old.

What if I Don't Have an Advance Directive in Place?

1. When would this law allow another person to make my health care decisions?
A doctor must first determine that you are unable to make or communicate responsible health care decisions before anyone would be allowed to make health care decisions for you.

2. Who is allowed by this law to make health care decisions?
The law allows the persons in the following categories, in the order listed, to make health care decisions for patients who are minors or who are unable to make or communicate responsible decisions about their health care. If someone from category A is not available to make the decision, someone in category B can make it, and so on:

A. The agent or alternate agent whom the patient has appointed in a durable power of attorney to make health care decisions.*
B. The court-appointed guardian who is authorized to make health care decisions or a court-appointed custodian of the patient.*
C. The patient's spouse who has maintained significant contacts with the patient.
D. Children of the patient who are at least 18 years of age and who have maintained significant contacts with the patient.
E. Parents of the patient, including a stepparent, who have maintained significant contacts with the patient.
F. Adult brothers and sisters of the patient who have maintained significant contacts with the patient.
G. Grandparents of the patient who have maintained significant contacts with the patient.
H. Grandchildren of the patient who are at least 18 years of age and who have maintained significant contacts with the patient.
I. A close relative or friend of the patient who is at least 18 years of age and who has maintained significant contacts with the patient.

* Effective August 1, 1995. Prior to this date, B was the highest category.

3. What happens if a person in a higher category refuses to provide consent to the proposed health care?
No one in a lower category may provide consent to the proposed health care if someone in a higher category has refused to consent -- which is to say, if they have refused to allow the proposed care. If they have merely refused to become involved in the decision making process, then the responsibility for deciding goes to someone in the next category.

4. Is it necessary for everyone in a particular category to consent to the proposed health care?
No. Any person in a particular category may consent to proposed health care.

5. Are there any guidelines which must be followed by the person authorized to give consent to health care?
Yes. Before giving consent, an authorized person must determine that the patient would have consented to such health care if he or she were able to do so.

6. Are there any health care decisions that the law does not permit anyone to make for someone else without a court order?
Yes. A court order is required before anyone may consent to sterilization, abortion or psychosurgery for someone else, or before anyone may allow someone else to be admitted to a state mental health facility (state hospital).

7. What if I, or someone interested in my welfare, object to my doctor's conclusion that I am unable to make my own health care decisions?
If you, or someone interested in your welfare, object to a doctor's decision that you are unable to make or communicate health care decisions, a court hearing must be held to determine whether you are able to make your own health care decisions.

Durable Power of Attorney for Health Care

What is a durable power of attorney for health care?
A durable power of attorney for health care is a legal document that allows you (the principal) to authorize someone of your own choosing (your agent) to make health care decisions for you if you become unable to make those decisions for yourself. It also allows you to give your agent, your family, your doctor and other health care providers written instructions regarding the kind of medical treatment you want or don't want if you are unable to make those decisions yourself.

Who can make a durable power of attorney for health care?
Any competent person 18 years of age or older.

What if I already have a durable power of attorney which includes health care provisions?
If you signed a durable power of attorney before July 17, 1991, and it includes health care provisions, it is still valid.

Can I be required to sign a durable power of attorney for health care?
No. No one can force you to sign, nor can anyone refuse you health care services or insurance because you have or have not signed a durable power of attorney for health care.

Can I sign a durable power of attorney for health care if I have already signed a living will?
You may sign both a durable power of attorney for health care and a living will. A durable power of attorney for health care is more flexible than a living will and covers a wider range of circumstances than a living will. Signing a durable power of attorney for health care does not cancel your living will, but if there are any differences between the two documents, the one you signed most recently will control.

Do I need a living will if I have a durable power of attorney for health care?
You do not need a living will if your durable power of attorney for health care document includes provisions to withdraw, withhold or use life-prolonging treatment in the event you have an incurable condition.

Who should I appoint as my agent?
Your agent should be someone you know and trust, someone who knows how you feel about medical treatment, who understands your beliefs and values, and who is willing to carry out your wishes. It may be a close friend, a spouse or another family member.

You may also appoint one or more persons to act as alternate agent in the event your agent is unable to serve or withdraws, and you are not capable of designating another agent.

If the agent you appoint is your spouse, a divorce will terminate the appointment.

Should I appoint an alternate agent?
The appointment of an alternate agent is not required but it is a good safeguard in case something should happen to your agent.

What kind of health care decisions can my agent make for me?
Your agent will have the authority to make on your behalf any and all health care decisions that you could make yourself, subject to any limitations that you place on your agent or to any legal limitations.

What kind of instructions can I give my agent?
You may give very general instructions or be quite specific. You are not required to give your agent any instructions. If you do not give your agent any instructions, your agent will make decisions based on your values as he or she determines them. If your agent is unable to determine what you would have decided, decisions will be made based on what your agent believes to be best for you under the circumstances.

What are my agent's responsibilities in carrying out my wishes?
After consulting with your attending doctor and other health care providers, your agent is required to make health care decisions in accordance with this knowledge and with your wishes and religious or moral beliefs. Your agent is required to follow your wishes as contained in your durable power of attorney for health care or your living will (if you have one), or as you stated them orally. If your wishes are unknown, your agent is required to make health care decisions for you based on your best interests.

How do I know that my doctor or health care provider will follow my agent's decisions?
Your doctor and other health care providers are bound to follow the directions of your agent to the extent that they are consistent with the law and your wishes.

If a health care provider has a moral or other conflict with a specific decision, the health care provider must inform your agent and, if possible, you, of the conflict and then take all reasonable steps to transfer your care to a health care provider who will follow your agent's instructions.

When does a durable power of attorney for health care become effective?
For a durable power of attorney for health care to be effective, the agent must accept the appointment in writing. The agent only has authority to make decisions for you if your attending doctor certifies that you lack the capacity to make your own health care decisions.

If I am a resident of a long-term care facility, are there any special requirements?
If you are a resident of a long-term care facility at the time you sign a durable power of attorney for health care, then a member of the clergy, an attorney licensed to practice law in North Dakota, or a person who is designated by the Department of Human Services or the county court must sign a statement affirming that he or she has explained to you the nature and effect of a durable power of attorney for health care; or else you must sign a statement that you have read a written explanation of the nature and effect of a durable power of attorney for health care.

If I am being admitted to or am a patient in a hospital, are there any special requirements?
If you are being admitted to or are a patient in a hospital at the time you sign a durable power of attorney for health care, an attorney or a person designated by the hospital must sign a statement that he or she has explained the nature and effect of a durable power of attorney for health care to you, or else you must sign a written statement that you have read a written explanation of the nature and effect of a durable power of attorney for health care.

Can I still make my own health care decisions after I have signed a durable power of attorney for health care?
You will be able to make your own medical decisions as long as you are capable of doing so and can communicate those decisions. Your agent's authority starts only when your doctor certifies in writing that you do not have the capacity to make those decisions.

Where should I keep my durable power of attorney for health care?
The original signed copy should be given to your agent or you should keep it where it is immediately available to your agent and your alternate agents. Photocopies of the original should be given to your alternate agent, your doctor and other health care providers. Family members should be aware of the document, its contents and where it is kept.

Is my agent or alternate agent liable for my health care costs?
The liability for the cost of your health care is the same as if you made the decision yourself.

Can my agent or alternate agents withdraw?
An agent or alternate agent may withdraw by giving you notice prior to the time you become incapacitated. After you become incapacitated, your agent or alternate agent may withdraw by giving notice to your doctor. The doctor is required to record the agent's withdrawal in your medical records.

Does a durable power of attorney for health care need to be witnessed or notarized?
It does not need to be notarized. However, you must sign it in the presence of two witnesses. The witnesses cannot be your agent or alternate agent, your health care provider, your long-term care services provider or an employee of your long-term care services provider. Also, your witness cannot be your spouse, a relative by blood or adoption, a person entitled to receive any part of your estate upon your death, or a person who, at the time you sign the durable power of attorney, has any claim against your estate.

When does a durable power of attorney for health care end?
It ends upon your death or when you revoke it. If your agent is your spouse, a divorce will terminate that appointment.

How do I revoke a durable power of attorney for health care?
If you want to revoke your durable power of attorney for health care, you may write a new one which automatically revokes the old one. You may also revoke the document by informing (orally or in writing) your agent, doctor or other health care provider. Notify your family and all people who have copies of your durable power of attorney for health care that you have revoked it.

Can I instruct my agent to withhold or withdraw nutrition or hydration?
Nutrition or hydration or both must be withdrawn, withheld or administered according to your wishes if you have previously declared your wishes in writing. If you have not made a written statement regarding nutrition and hydration, the administration of nutrition and hydration is presumed to be in your best interest.

Can I authorize my agent to donate my body organs?
If you want to donate your body organs after your death, the following clause could be inserted into paragraph 4(b) of the statutory form:

"I authorize, at the time of my death, all or part of my body to be used by any hospital, physician, surgeon or procurement organization for transplantation, therapy, medical or dental education, or research for advancement of medical or dental science."

Living Wills

What is a living will?
A living will is not a will that distributes assets after death, but is a written statement of wishes regarding the use, withholding or withdrawal of life-prolonging treatment and nutrition and hydration if a person has a terminal condition and is incapable of making decisions for himself or herself.

A living will usually states that the signer's life should not be artificially prolonged by extraordinary measures when there is no reasonable expectation of recovery from extreme physical or mental disability. However, a living will could request that every effort be made to prolong life by extraordinary measures.

Who can make a living will?
Any competent person 18 years of age or older can make a living will.

What is a terminal condition?
A terminal condition is an incurable or irreversible condition for which life-prolonging treatment will only delay death. "Terminal condition" does not refer to any form of senility, Alzheimer's disease, mental illness, mental retardation, or chronic mental or physical impairment (including comatose conditions) that don't make death imminent.

What is life-prolonging treatment?
Life-prolonging treatment includes any medical procedure, treatment or intervention that prolongs the process of dying for a person in a terminal condition. In other words, it delays death but will not prevent it. Death will eventually occur as a result of the condition, whether or not life-prolonging treatment is provided. The term is usually used to refer to artificial support for breathing, heart and kidney functions.

Under North Dakota law, it does not include treatment or intervention in an emergency, pre-hospital situation.

Can food and water ever be withheld or withdrawn?
North Dakota law requires that nutrition and hydration or both must be withdrawn, withheld or administered in accord with a patient's previously written instructions.

Does my doctor have to follow the directions in my living will?
Physicians and other health care providers, such as hospital or nursing facility staff, must say whether or not they are willing to comply with your living will when you present it. If they are not, they must take all reasonable steps to transfer care to another doctor or health care provider who will comply with your wishes. Don't give the doctor decision-making powers since he or she cannot act as both your proxy and your physician. Ask the institution to agree in writing to comply with the living will.

When does my living will take effect?
Your living will goes into effect only when your personal physician and one other doctor determine that you have a terminal condition and that you cannot make your own decisions.

Can I revoke my living will?
As long as you are competent, you can revoke your living will. This can be done at any time by destroying it, by signing and dating a paper stating you revoke it, or by saying you want it revoked. Inform your family, physician and other health care providers that you have revoked it.

Does my living will need to be notarized or witnessed?
Notarization isn't necessary, but the living will must be signed in the presence of two witnesses. The witnesses cannot be related to you by blood or marriage, entitled to receive property under your will, claimants to any portion of your estate, financially responsible for your medical care, or physicians primarily responsible for your care.

If you live in a nursing facility or a basic care facility or are in a swing-bed unit at the time you make a living will, one of the two witnesses must be a member of the clergy, an attorney licensed to practice law in North Dakota, or a person designated by the Department of Human Services or county court.

Do I have to have a living will?
You cannot be required to have a living will as a condition for receiving health care services or health insurance. You should only make a living will if you want to have one.

What if I have a living will which was made years ago?
A living will made before July 10, 1989, will remain in effect if it complies with the intent of North Dakota's living will statute.

Should I revise my living will?
It is a good idea to review your living will once a year to make sure it reflects your current wishes. It is a good idea to review it before witnesses every five years. A recent reaffirmation of your wishes will carry extra weight with health care providers and encourage you to rethink your position. To make changes, you will need to write a new living will.

Will a North Dakota living will be recognized in another state?
Laws covering living wills vary from state to state, although states often recognize laws in other states if those laws are substantially the same as their own. Check the laws of the state you are going to visit or live in, or in which you may become a hospital patient or nursing facility resident, to find out if that state will recognize your North Dakota living will.

If I make a living will, what should I do with it?
Discuss the living will with your physician and other health care providers. Also discuss it with family members, since your doctor will consult them in the event you are unable to make your own health care decisions. Keep them informed of your wishes so they won't interfere if the time comes to invoke your living will.

Copies of your living will should be given to your attorney, your physician, other health care providers and your family. You may also wish to give copies to your clergy. Don't keep the original document in a safe deposit box where it may be unaccessible to others if you are stricken. Put it with other important papers that are safe and accessible.

Do I need a living will if I have a durable power of attorney for health care?
If you choose, you may provide specific instructtions to your agent in a durable power of attorney for health care to withhold, withdraw or use life-prolonging treatment, nutrition or hydration in the event you should have an incurable condition.

For example, in paragraph 4 of your durable power of attorney for health care, you could direct your agent to either use, withhold or withdraw life-prolonging treatment, nutrition or hydration in the event you should have an incurable condition caused by injury, disease or illness.

If you do not have any type of advance directive in place, the North Dakota Informed Health Care Consent Law may apply.

Checklist for Preparing Advance Directives for Health Care*

I have:

* From When To Let Go: Advance Directives for Health Care, University of Wisconsin -- Extension, May 1994).

Finally

People don't like to talk about their chances of having a terminal illness or becoming dependent or incapacitated. Discussing your wishes concerning medical measures ahead of time can save your family additional anguish at a time of great stress. If there is anything you don't understand as you develop your durable power of attorney for health care or your living will, consult a lawyer.

Adapted from material originally developed by North Dakota Department of Human Services-Aging Services Division, and North Dakota Patient Self-Determination Act Task Force.

The following are forms approved by the 1993 North Dakota Legislature, which you may wish to use to create your own Durable of Attorney for Health Care or Living Will

The Durable Power of Attorney for Health Care

(Nature and Effect Statement)

Warning to person executing this document. This is an important legal document that is authorized by the general laws of the state. Before executing this document, you should know these important facts:

You must be at least eighteen years of age for this document to be legally valid and binding.

This document gives the person you designate as your agent (the attorney in fact) the power to make health care decisions for you. Your agent must act consistently with your desires as stated in this document or as otherwise made known.

Except as you otherwise specify in this document, this document gives your agent the power to consent to your doctor to not give treatment or to stop treatment necessary to keep you alive.

Notwithstanding this document, you have the right to make medical and other health care decisions for yourself so long as you can give informed consent with respect to the particular decision.

This document gives your agent authority to request, to refuse to consent to, or to withdraw consent for any care, treatment, service or procedure intended to maintain, diagnose or treat your physical or mental condition if you are unable to do so yourself. The power is subject to any statement of your desires and any limitation that you include in this document. You may state in this document any types of treatment that you do not desire. In addition, a court can take away the power of your agent to make health care decisions for you if your agent authorizes anything that is illegal, if your agent acts contrary to your known desires, or if your agent acting on matters about which your desires are not known does anything that is clearly contrary to your best interests.

Unless you specify a period during which it is valid, this power will exist until you revoke it. Your agent's power and authority cease upon your death.

You have the right to revoke the authority of your agent by notifying your agent, your treating doctor or your hospital (or other health care provider) either orally or in writing.

Your agent has the right to examine your medical records and to consent to their disclosure unless you limit this right in this document.

This document revokes any prior durable power of attorney for health care.

1. DESIGNATION OF HEALTH CARE AGENT.

I, (Insert your name and address)_________________________________________________
________________________________________________________, do hereby designate and appoint (Insert name, address and telephone number of one individual only as your agent to make health care decisions for you. None of the following may be designated as your agent: your treating health care provider, a non-relative employee of your treating health care provider, an operator of a long-term care facility.)
_________________________________________________
________________________________________________, as my attorney in fact (agent) to make health care decisions for me as authorized in this document. For the purposes of this document, "health care decision" means consent, refusal of consent, or withdrawal of consent to any care, treatment, service or procedure to maintain, diagnose or treat my physical or mental condition.

2. CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE.

By this document, I intend to create a durable power of attorney for health care.

3. GENERAL STATEMENT OF AUTHORITY GRANTED.

Subject to any limitations in this document, I hereby grant to my agent full power and authority to make health care decisions for me to the same extent that I could make such decisions for myself if I had the capacity to do so. In exercising this authority, my agent shall make health care decisions that are consistent with my desires as stated in this document or otherwise made known to my agent, including my desires concerning obtaining, refusing or withdrawing life-prolonging care, treatment, services and procedures.

(If you want to limit the authority of your agent to make health care decisions for you, state the limitations in paragraph 4 below, "Statement of Desires, Special Provisions and Limitations.")
____________ (Initial here)

4. STATEMENT OF DESIRES, SPECIAL PROVISIONS AND LIMITATIONS.

(Your agent must make health care decisions that are consistent with your known desires. You can, but are not required to, state your desires at this point in the document. You should consider whether you want to include a statement of your desires concerning life-prolonging care, treatment, services and procedures. You can also make your desires known by discussing your desires with your agent or by some other means. If there are any types of treatment you do not want to be used, state them here. If you want to limit in any other way the authority given your agent by this document, state those limits here. If you do not state any limits, your agent will have broad powers to make health care decisions for you, except to the extent that there are limits provided by law.)

In exercising the authority under this durable power of attorney for health care, my agent shall act consistently with my desires as stated below, and is subject to the special provisions and limitations state below:

a.(Statement of desires concerning life-prolonging care, treatment, services and procedures.)




b.(Additional statement of desires, special provisions and limitations regarding health care decisions.)




(You may attach additional pages if you need more space to complete your statement. If you attach additional pages, you must date and sign each of the additional pages at the same time you date and sign this document. If you wish to make a gift of body organs, you may do so pursuant to North Dakota Century Code Chapter 23 06.2, the Uniform Anatomical Gift Act.)

5. INSPECTION AND DISCLOSURE OF INFORMATION RELATING TO MY PHYSICAL OR MENTAL HEALTH.

Subject to any limitations in this document, my agent has the power and authority to do all of the following:

a. Request, review and receive any information, verbal or written, regarding my physical or mental health, including medical and hospital records.

b. Execute on my behalf any releases or other documents that may be required to obtain this information.

____________ (Initial here)

c.Consent to the disclosure of this information.
(If you want to limit the authority of your agent to receive and disclose information relating to your health, you must state the limitations in paragraph 4 above, "Statement of Desires, Special Provisions and Limitations.")

6. SIGNING DOCUMENTS, WAIVERS AND RELEASES.

Where necessary to implement the health care decisions that my agent is authorized by this document to make, my agent has the power and authority to execute on my behalf all of the following:

a. Documents titled or purporting to refer to a "Refusal to Permit Treatment" and "Leaving Hospital Against Medical Advice."

b. Any necessary waiver or release from liability required by a hospital or physician.

DURATION.

(Unless you specify a shorter period in the space below, this power of attorney will exist until it is revoked.)
This durable power of attorney for health care expires on _____________________, 199____.
(Insert a date if you want the authority of your agent to end on a specific date.
Write "indefinite" if you do not want the authority to end on a specific date.)

8. DESIGNATION OF ALTERNATE AGENTS.

(You are not required to designate any alternative agents, but you may do so. Any alternate agent you designate will be able to make the same health care decisions as the agent you designated in paragraph 1 above, in the event that the agent is unable or ineligible to act as your agent. If the agent you designated is your spouse, he or she becomes ineligible to act as your agent if your marriage is dissolved. Your agent may withdraw whether or not you are capable of designating another agent.)

If the person designated as my agent in paragraph 1 is not available or becomes ineligible to act as my agent to make a health care decision for me or loses the mental capacity to make health care decisions for me, or if I revoke that person's appointment or authority to act as my agent to make health decisions for me, then I designate and appoint the following persons to serve as my agent to make health care decisions for me as authorized in this document, such persons to serve in the order listed below:

a. First Alternate Agent:_______________________________________________
_________________________________________________
(Insert name, address and telephone number of first alternate agent.)

b. Second Alternate Agent:_______________________________________________
_________________________________________________
(Insert name, address and telephone number of second alternate agent.)

9. PRIOR DESIGNATIONS REVOKED.

I revoke any prior durable power of attorney for health care.
____________ (Initial here)

DATE AND SIGNATURE OF PRINCIPAL.
(You must date and sign this power of attorney.)

I sign my name to this Durable Power of Attorney for Health Care

on (date) _____________________ at (city) ________________________, (state) ___________

_________________________________ (your signature)

(This power of attorney will not be valid unless it is signed by two qualified witnesses who are present when you sign or acknowledge your signature. If you have attached any additional pages to this form, you must date and sign each of the additional pages at the same time you date and sign this power of attorney.)

STATEMENT OF WITNESSES.

(This document must be witnessed by two qualified adult witnesses. None of the following may be used as a witness:

  1. A person you designate as your agent or alternate agent;
  2. A health care provider;
  3. An employee of a health care provider;
  4. The operator of a long-term care facility;
  5. An employee of an operator of a long-term care facility;
  6. Your spouse;
  7. A person related to you by blood or adoption;
  8. A person entitled to inherit any part of your estate upon your death; or
  9. A person who has, at this time of executing this document, any claim against your estate.)
    10.

I declare under penalty of perjury that the person who signed or acknowledged this document is personally known to me to be the principal; that the principal signed or acknowledged this durable power of attorney in my presence; that the principal appears to be of sound mind and under no duress, and under no fraudulent or undue influence; that I am not the person appointed as attorney in fact by this document; and that I am not a health care provider, an employee of a health care provider, the operator of a long-term care facility, an employee of an operator of a long-term care facility, the principal's spouse, a person related to the spouse by blood or adoption, a person entitled to inherit any part of the principal's estate upon death, nor a person who has, at the time of executing this document, any claim against the principal's estate.

Signature:_______________________ Residence Address: _________________________

Name printed: _______________________________ Date: ___________________

Signature: _______________________ Residence Address: __________________________

Name printed: _______________________________ Date: ___________________

AGENT'S ACCEPTANCE OF APPOINTMENT OF POWER OF ATTORNEY.

(To be filled out by the agent and any alternate agents.)

I accept this appointment and agree to serve as agent for health care decisions. I understand I have a duty to act consistently with the desires of the principal as expressed in this appointment. I understand that this document gives me authority over health care decisions for the principal only if the principal becomes incapable. I understand that I must act in good faith in exercising my authority under this power of attorney. I understand that the principal may revoke this power of attorney at any time in any manner.

If I choose to withdraw during the time the principal is competent, I must notify the principal of my decision. If I choose to withdraw when the principal is incapable of making the principal's health care decisions, I must notify the principal's physician.

__________________________________________________
(Signature of agent/date)

_________________________________________________
(Signature of alternate agent/date)

_________________________________________________
(Signature of alternate agent/date)

This form complies with 23-06.5-17 of the North Dakota Century Code.

PRINCIPAL'S STATEMENT.

I have read the statutory explanation of the nature and effect of a durable power of attorney for health care, which is attached to my durable power of attorney for health care dated ______________________________.
Dated this _____________day of__________________________________,199______.
__________________________________ (Signature of principal)

STATEMENT AFFIRMING EXPLANATION OF THE NATURE AND EFFECT OF A DURABLE POWER OF ATTORNEY FOR HEALTH CARE TO RESIDENT OF LONG-TERM CARE FACILITY.

I have explained the nature and effect of a Durable Power of Attorney for Health Care to
________________________________________________ (name of principal)
who signed this document as the principal and who is a resident of
______________________________ (name of facility),
a long-term care facility located in the City of _________________________, ________________________ County, North Dakota.

I am (circle one of the following):

____________________________________________(Signature of person giving explanation)

Dated this ______________________day of_______________________________,199______.

NOTE: Either this statement or the Principal's Statement on page C must be completed if the principal is a resident of a long-term care facility at the time he or she signs a durable power of attorney for health care.

STATEMENT AFFIRMING EXPLANATION OF THE NATURE AND EFFECT OF A DURABLE POWER OF ATTORNEY FOR HEALTH CARE TO A HOSPITAL PATIENT.

I have explained the nature and effect of the attached Durable Power of Attorney for Health Care

to___________________________________________ (name of principal)
who signed it as principal and who is either a patient at or in the process of being admitted to
__________________________________hospital.

I am (circle one of the following):

____________________________________________(Signature of person giving explanation)

Dated this ___________________day of__________________________________,199______.

NOTE: Either this statement or the Principal's Statement on page C must be completed if the principal is a hospital patient or in the process of being admitted to a hospital when the Durable Power of Attorney for Health Care is signed.

The Living Will Declaration Concerning the Rights of the Terminally Ill Regarding Life-Prolonging Treatment and Nutrition and Hydration

This is an important legal document which permits you to make decisions regarding life-prolonging medical treatment, nutrition (food) and hydration (water).

This statement of your wishes will be used by others if you are terminally ill and your death is imminent and you are not able to make these health-care decisions yourself.

The intent of this document is to provide an easy-to-use living will form for those who wish to use it.

To fulfill legal requirements, please place your initials in the appropriate blank spaces to indicate your choices on the form. Please do not use an "X" or check mark.

This form has been developed with the cooperation and assistance of representatives of the organizations listed below. These organizations do not all encourage the use of the living will. However, all these organizations urge you to consider completing a durable power of attorney for health care. The durable power of attorney enables you to designate the person you want to make your health care decisions when you are no longer able to make those decisions yourself.

The North Dakota Hospice Organization, the North Dakota Judicial System, the North Dakota Nurses Association, the North Dakota Right to Life, the North Dakota Catholic Conference, the North Dakota Medical Association, the North Dakota Hospital Association, the North Dakota Lutheran Social Services, and the North Dakota Long Term Care Association.

I, __________________________________________________________, hereby declare:

A. LIFE-PROLONGING TREATMENT.

(Place your initials by only one statement in this section.)

I have made the following decision concerning life-prolonging treatment:

1. (_________________)I direct that life-prolonging treatment be withheld or withdrawn and that I be permitted to die naturally if two physicians certify that:

a. I am in a terminal condition which is incurable or irreversible and which, without the administration of life-prolonging treatment, will result in my death.

b. the application of life-prolonging treatment would serve only to artificially prolong the process of my dying; and

c. I am not pregnant.

It is my intention that this declaration be honored by my family and physicians as the final expression of my legal right to refuse medical or surgical treatment, and that they accept the consequences of my refusal, which is death.

2. (_________________)I direct that life-prolonging treatment, which could extend my life, be used if two physicians certify that I am in a terminal condition which is incurable or irreversible and which, without the administration of life-prolonging treatment, will result in my death. It is my intention that this declaration be honored by my family and physicians as the final expression of my legal right to direct that medical or surgical treatment be provided.

3. (__________) I make no statement concerning life-prolonging treatment.

B. NUTRITION.

(Place your initials by only one statement in this section.)

I have made the following decision regarding the administration of nutrition when my death is imminent:

1. (_________________)I wish to receive nutrition.

2. (_________________)I wish to receive nutrition unless I cannot physically assimilate nutrition, nutrition would be physically harmful or cause unreasonable physical pain, or nutrition would only prolong the process of my dying.

3. (_________________)I do not wish to receive nutrition.

4. (_________________)I make no statement concerning the administration of nutrition.

C. HYDRATION.

(Place your initials by only one statement in this section.)

I have made the following decision concerning the administration of hydration when my death is imminent:

1. (_________________)I wish to receive hydration.

2. (_________________)I wish to receive hydration unless I cannot physically assimilate hydration, hydration would be physically harmful or would cause unreasonable physical pain, or unless hydration would only prolong the process of dying.

3. (_________________)I do not wish to receive hydration.

4. (_________________)I make no statement concerning the administration of hydration.

D. NO STATEMENT ON NUTRITION OR HYDRATION.

Concerning the administration of nutrition and hydration, I understand that if I make no statement about nutrition or hydration, my attending physician may withhold or withdraw nutrition or hydration if that physician determines that I cannot physically assimilate nutrition or hydration or that nutrition or hydration would be physically harmful or would cause unreasonable physical pain.

E. PREGNANCY.

If I have been diagnosed as pregnant and that diagnosis is known to my physician, this declaration is not effective during the course of my pregnancy.

F. COMPETENCY.

I understand the importance of this declaration. I am voluntarily signing this declaration. I am at least eighteen years of age, and I am emotionally and mentally competent to make this declaration.

G. REVOCATION.

I understand that I may revoke this declaration at any time.

Declaration made this____________________(month)_____________ (day)________(year).

____________________________(declarant's signature)

City, county, and state of residence:

_____________________________________________________________________

STATEMENT OF WITNESSES.

The declarant is known to me and I believe the declarant to be of sound mind. I am not related to the declarant by blood or marriage, nor am I entitled to any portion of the declarant's estate upon the declarant's death. I am not the declarant's attending physician, a person who has a claim against any portion of the declarant's estate upon the declarant's death, or a person directly financially responsible for the declarant's medical care.

____________________________________(witness signature/date)

____________________________________(witness signature/date)

HE-494, Reviewed and Reprinted June 1995

NDSU Extension Service, North Dakota State University of Agriculture and Applied Science, and U.S. Department of Agriculture cooperating. Sharon D. Anderson, Director, Fargo, North Dakota. Distributed in furtherance of the Acts of Congress of May 8 and June 30, 1914. We offer our programs and facilities to all persons regardless of race, color, national origin, religion, sex, disability, age, Vietnam era veterans status, or sexual orientation; and are an equal opportunity employer.
This publication will be made available in alternative formats upon request, 701/231-7881.

North Dakota State University
NDSU Extension Service