Living Wills and Durable Power of Attorney for Heatlh Care
by Christopher Dodson,
Executive Director, North Dakota Catholic Conference
August 2003

Living wills and durable powers of attorney for health care – collectively called “advance directives”—are ways a person can direct how health care decisions are made for them if they are unable to make the decision. Church teaching does not obligate or forbid Catholics to have an advance directive. However, since the subject touches upon crucial decisions regarding life, death, and dignity, the North Dakota Catholic Conference has long worked to make executing advance directives more user friendly and their application consistent with the moral law. To that end, here are some answers to common questions about advance directives in North Dakota.

What is a living will? A “living will” is a written document that states what you would want done if you are incapacitated. In North Dakota, a living will is only in force when a person is incapacitated and terminally ill. Even in those limited circumstances, it is only presumptive evidence of what you would want done and not necessarily binding.

What is a durable power of attorney for health care? This is a written document through which you appoint someone to make health care decisions for you if you are unable to do so. Unlike a living will, you do not have to be terminally ill for it to have effect. Also, the directives of the person – called an agent – is as binding on the health care provider as if it came directly from you.

If I want an advance directive, do I need both types of documents? No, having both is not necessary and could cause confusion. If you have someone you trust with such decisions, use a durable power of attorney for health care. If you have a specific directive you want put in writing, it can be put in that document and will be binding on the agent and health care provider.

If I have given someone power of attorney, can that person make health care decisions in my behalf? No. A power of attorney is different from a power of attorney for health care and has no legal right to make health care decisions.

Can the agent make any decision about my health care that he or she wants? No. The agent is limited by what you wrote in the document, what you might have said or written in the past, your religious and moral beliefs, and a legal requirement as to what is in your best interests.

If I have an advance directive and it is not legally valid or not in effect, it is worthless? No. Even without an advance directive the person making health care decisions for you is legally obligated to first try to do what you would have wanted. The advance directive would be evidence of your wishes.

Do I have to use the form in the state law? No. Under North Dakota law, the statutory form is the preferred, but not required, form. So long as it complies with the law’s basic requirements, another form may be used. Even if it does not meet those requirements – if, for example, it was not properly notarized or witnessed – it still would be evidence of what you wanted.

Do health care providers prefer living wills or durable powers of attorney? Most prefer durable powers of attorney. The unique health conditions of each patient make it difficult to apply statements in a document written in the past. The prevailing thought is that decisions closer to what the patient wanted are more likely to come from an agent looking at the present conditions.

Is the purpose of an advance directive to help the physician, respect the patient, or limit outside involvement? It is a little of all of those. However, the greatest impact advance directives have had is at making patients and their families more comfortable with the natural dying process. Persons that have advance directives and have discussed them with their families are less fearful of dying and less likely to support assisted suicide or extreme measures to prolong life artificially. For that reason, we need to look at advance directives as less of a legal/medical document and more as a tool for addressing life’s challenges.