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.
