North Dakota Q and A

Ten commonly asked questions about PAD’s for North Dakota

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  These answers are accurate as of September 2019. 

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  You may use the part of the North Dakota statutes entitled Health Care Directives to appoint an agent to make decisions about your psychiatric treatment if you become incompetent to make those decisions; or to write instructions about how you would like your psychiatric treatment to proceed; or both.  A standard form is provided in the statute.  You do not have to use it, as long as you create a written document and follow the procedural rules set out below.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  Part II(B) of the standard form allows you to set out your instructions on any aspect of your psychiatric treatment, which could include advance decisions to refuse medications or hospitalization.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, your document containing advanced instructions must be notarized, or signed by two witnesses, one of whom must be someone other than your health care provider.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes.  However, your agent must not be an employee of your health care or care services provider.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  Your agent may make decisions about anything that you could decide on, with the exception of psychosurgery, abortion or sterilization.  Your agent may not consent to your admission to a mental health facility or state institution for a period of over 45 days unless a court has also approved that admission.  Your agent must accept his or her appointment in writing.  Whilst you are competent to make decisions, your agent may withdraw by informing you that he or she wishes to do so.  If you become incompetent to make decisions, your agent may withdraw by informing your health care provider.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?   

Your agent must make decisions in accordance with your advance instructions, if you have made them, and in accordance with your stated beliefs and wishes.  If your exact wishes are not known, your agent must make decisions in your best interests.  For more, see chapter 23-06.5-03.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  You may do one, the other, or both.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  The statute says that your providers may decline to follow your instructions, or those of your agent, in three situations: (1) The provider feels unable to follow the instructions for “reasons of conscience or other conflict”; in that situation, the provider must try to find another provider who will follow the instructions; (2) The provider considers that the instructions run contrary to “reasonable medical standards”; (3) You are considered to require ”comfort, care or alleviation of pain”, and the treatment required for those purposes would be in conflict with your instructions.  For more detail, see chapter 23-06.5-09.  Additionally, if you were hospitalized or medicated under North Dakota’s involuntary treatment laws, it is likely that health care providers could decline to follow your instructions, or those of your agent.

10.  How long does my PAD remain valid?

The document containing your instructions and/or agent nomination is valid as long as you do not revoke it.  You may revoke your document at any time, orally or in writing, or by doing any act that implies you wish to revoke it.  If you appoint your spouse as your agent, he or she would no longer be a valid agent if you became divorced or legally separated after you wrote the document.  In that situation, you would need to amend the document to clarify who should be your agent.