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SB 2297

AN ACT to amend and reenact subsection 3 of section 23-06.5-03 and section 23-12-13 of the North Dakota Century Code, relating to the determination of incapacity and informed consent of incapacitated patients and minors.

69th Legislative Assembly (2025-26) Introduced by Jeff Barta and 4 co-sponsors

SB 2297 ties health care directives to incapacity—requires written certification and sets a fixed priority for who may consent for incapacitated patients (and minors).

Filed with Secretary Of State 04/30
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Bill Summary · SB 2297

SB 2297 — Summary (North Dakota, 2025)

Status: Enrolled and filed with the Secretary of State (filed 04/30/2025). Introduced March 11, 2025. Companion: HB 4683.

Purpose

SB 2297 revises North Dakota law on (1) when a health care directive and an agent’s authority take effect and terminate, and (2) who may give informed consent for health care on behalf of incapacitated adult patients and minors, and in what order of priority.

Key provisions

  1. Health care directive effectiveness (NDCC § 23‑06.5‑03(3))

    • A health care directive (and the agent’s authority under it) is effective only when the principal lacks capacity to make health care decisions.
    • Incapacity must be certified in writing by the principal’s attending physician, psychiatrist, or psychologist and that certification must be filed in the principal’s medical record.
    • The directive and agent authority cease to be effective once the principal is determined to have recovered capacity.

  2. Definition and certification of “incapacitated patient” (NDCC § 23‑12‑13)

    • Defines “incapacitated patient” as an adult who cannot understand/communicate the nature, benefits, harms, or alternatives of a health care decision — as certified in writing by the attending physician, psychiatrist, or psychologist and filed in the medical record.

  3. Priority list for providing informed consent on behalf of incapacitated patients

    • Order of persons who may authorize health care (unless a court orders otherwise):
      1. Guardian with specific court authorization to make health care decisions
      2. Health care agent under a health care directive (chapter 23‑06.5) or similar valid instrument
      3. Appointed guardian or custodian under guardianship statutes
      4. Spouse with significant contact
      5. Adult child (18+) with significant contact
      6. Parent or stepparent with significant contact
      7. Adult sibling with significant contact
      8. Grandparent with significant contact
      9. Grandchild (18+) with significant contact
      10. Close relative or friend (18+) with significant contact
      11. An interdisciplinary team of at least three health‑care professionals (may include an employee/agent of the treating provider but no member directly involved in the patient’s care)
    • If an interdisciplinary team provides consent, the health care provider must continue good‑faith efforts to locate individuals of higher priority.

  4. Minor patients

    • Parents retain primary authority to make health care decisions for their minor child.
    • If a parent cannot provide consent, a parallel priority order applies for minors (guardian with court authorization, appointed guardian/custodian, noncustodial parent or stepparent with significant contact, adult sibling, grandparent, close relative/friend 18+, or an interdisciplinary team of at least three).

  5. Duties and limits

    • Health care providers must make reasonable efforts to locate persons of higher priority before accepting consent from a lower‑priority person.
    • An authorized person must first determine in good faith that the patient (if capable) would consent to the proposed care; if that cannot be determined, decisions must be made in the patient's best interests.
    • Persons authorized under this section may not consent to sterilization, abortion, psychosurgery, or admission to a state mental health facility for more than 45 days without a mental health proceeding or other court order.

  6. Dispute process

    • If a patient (or an interested person) objects to a determination of incapacity, a court hearing under guardianship statutes is required to resolve incapacity.

Who is affected

  • Incapacitated adult patients and minors in North Dakota
  • Health care agents (under health care directives), guardians, family members, and friends who may be called upon to give consent
  • Physicians, psychiatrists, psychologists and other health care providers who must certify incapacity, file certifications in medical records, and follow the priority/effort requirements
  • Health care facilities’ ethics committees and interdisciplinary teams

Procedural/timeline notes

  • Bill moved through committee amendments and conference committee.
  • Conference committee amendments clarified who may certify incapacity (attending physician, psychiatrist, or psychologist) and set minimum interdisciplinary team size at three professionals (final enacted text).
  • Enrolled and signed by the legislature and governor in late April 2025; filed with Secretary of State on 04/30/2025.

For full statutory text and precise procedural history, see NDCC sections 23‑06.5‑03(3) and 23‑12‑13 and the bill enrollment documents.

Compiled from official sources — confirm details with the bill’s official record.

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