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How To Make a Power of Attorney in North Dakota FAQ

Written by: Catherine Hodder, Esq. , Senior Legal Writer
Reviewed by: Jordan Walker, J.D. , Legal Writer
Last updated May 17, 2024

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A power of attorney is critical if you have a sudden disability or incapacity. Your attorney-in-fact can step in to handle your legal and financial matters when you can’t. Learn about power of attorney documents and how to create a valid North Dakota POA.

Frequently Asked Questions

What Is a Power of Attorney?

A power of attorney (POA) in North Dakota is a legal document that allows an individual, known as the principal, to designate another person, referred to as the attorney-in-fact, to act on the principal’s behalf. North Dakota power of attorney laws are found in § 30.1–30–01 to § 30.1–30–06.

There are different types of power of attorney documents. A financial power of attorney covers financial affairs and legal matters. For example, your attorney in fact can pay bills, file tax returns, and handle real estate transactions. A health care directive covers medical decisions, healthcare treatments, and wishes for end-of-life care.

If you do not have a power of attorney and are suddenly unable to make your own decisions, your family must petition a North Dakota court for a conservatorship. A court then appoints someone as your conservator to make decisions for you. A power of attorney avoids conservatorship because you already have an attorney in fact willing and able to step in on your behalf.

Who Can Be My Attorney in Fact?

Any competent adult can serve as your attorney in fact. Many people name a family member, friend, or professional, like an accountant or attorney. When choosing an attorney in fact look for someone who is responsible, organized, and trustworthy. The attorney in fact has broad power over a principal’s money and property but they have a fiduciary duty to act in good faith and the best interest of the principal.

Avoid naming more than one attorney in fact. If they must act jointly, what happens when they disagree? If they act independently, what happens when they contradict each other’s actions? Instead, name one person as your primary attorney in fact with another person as the backup or successor to the attorney in fact. If your first attorney in fact can’t serve, your second choice can step in.

What Can My Attorney in Fact Do in North Dakota?

You decide what you want your attorney in fact to able to do. For example, you may want your attorney in fact to access your bank accounts, manage your investments, or buy and sell property. North Dakota does not specify what actions are allowed or prohibited. Generally, you may want to grant your attorney in fact the authority to handle transactions involving:

  • Real property (real estate)
  • Tangible personal property (personal possessions)
  • Stocks and bonds
  • Commodities and options
  • Banks and other financial institutions
  • Operation of entity or business
  • Insurance and annuities
  • Estates, trusts, and other beneficial interests
  • Claims and litigation
  • Personal and family maintenance
  • Benefits from governmental programs or civil or military service
  • Retirement plans
  • Tax matters

There are certain powers that have the potential to reduce your estate. You may want your agent to reduce your estate to lower your estate taxes or qualify you for government programs such as Social Security or Medicaid. If you want to give these powers, you should expressly do so to allow your attorney in fact to:

  • Create, amend, revoke, or terminate any living trust
  • Make a gift
  • Create or change rights of survivorship
  • Create or change a beneficiary designation
  • Authorize another person to exercise the authority granted under the power of attorney
  • Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
  • Exercise authority over the content of electronic communications sent or received by the principal
  • Exercise fiduciary powers that the principal has authority to delegate
  • Renounce an interest in property, including a power of appointment

You must decide what powers you want your attorney in fact to have and talk with them about how they should manage your money and your property.

What Is a Durable Power of Attorney in North Dakota?

durable power of attorney in North Dakota means it continues to be in effect even when the principal is incapacitated. Under North Dakota code §30.1-30-01 (5-501), a durable power of attorney must contain words of durability within the document such as “This power of attorney is not affected by subsequent disability or incapacity of the principal or by lapse of time” or “This power of attorney becomes effective upon the disability or incapacity of the principal.”

When Is the Power of Attorney Effective?

The power of attorney becomes effective immediately upon the principal’s signature unless the document specifies a different effective date or is a “springing” POA, which takes effect upon the principal’s incapacity.

When Does the Power of Attorney End?

A power of attorney ends upon the principal’s death or if the principal revokes it. It will also end upon the incapacity of the principal if the POA is non-durable. The POA can also end on a termination date specified in the document.

If your attorney in fact is unable or unwilling to serve, their agent authority ends. If you do not have a backup or successor to the attorney in fact, the power of attorney terminates. That is why you should name a backup attorney in fact.

Does North Dakota Have a Statutory Power of Attorney?

No. North Dakota does not provide a statutory power of attorney form. You can either create a power of attorney yourself or hire an estate planning attorney.

Can I Make My Own Power of Attorney in North Dakota?

Yes. First, you must know who you want as your attorney in fact and what powers you want them to have before making a financial power of attorney. Many people looking for self-help solutions use state-specific online estate planning forms conforming to North Dakota state law. However, contact an attorney for legal advice if you have questions about power of attorney documents.

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How Do I Make My Power of Attorney Valid in North Dakota?

To meet the legal requirements for a power of attorney, you must be at last 18 years old and mentally competent. Your POA must be in writing, signed, and dated by you.

Do I Have to Notarize My Power of Attorney in North Dakota?

Although there is no specific statute requiring notarization, it is standard practice to sign your power of attorney in front of a notary public. The notarization proves that you voluntarily signed your power of attorney, which may be important to show in other jurisdictions and among third parties.

What Should I Do After Signing My Power of Attorney?

Keep your original POA in a secure location and give copies to your attorney in fact and any third parties, such as your bank or financial institution. A third party may ask for an agent certification form in which your attorney in fact attests that your power of attorney is effective, and they can serve as your attorney in fact.

Does an Attorney in Fact Get Paid in North Dakota?

Your attorney in fact may be entitled to reimbursement of reasonable expenses incurred under your power of attorney. Your attorney in fact may also receive reasonable compensation for their time unless you state otherwise in your power of attorney.

Is My North Dakota Power of Attorney Valid in Another State?

Yes. Generally, a North Dakota power of attorney created under North Dakota law is recognized in other states. However, many states require notarized signatures on their power of attorney documents, so it is a good idea to make sure you sign your North Dakota POA in front of a notary.

Can I Revoke My North Dakota Power of Attorney?

Yes. As long as you are mentally competent, you can revoke your power of attorney document at any time. To revoke your power of attorney, make a written statement of revocation and give copies of it to your attorney in fact and all others who have a copy of your original POA.

What Estate Planning Documents Should I Have in North Dakota?

There are two other estate planning documents, in addition to a financial power of attorney, that complete your estate plan.

health care directive incorporates a health care power of attorney with a living will or advance directive. You can name someone as your agent to get medical information, talk to healthcare providers, and make healthcare decisions on your behalf when you can’t. You can also share your wishes for life-sustaining measures you want if you have an end-stage illness or terminal condition.

last will and testament is a legal document used after you die. In your will, you decide who you want to manage your estate, how you want to distribute your property, and who cares for your minor children and pets. If you don’t have a will, a probate court distributes your property according to state intestacy laws. They also decide who handles your estate and who cares for your children, and you may not like their choice. A will allows you to keep control over the decisions about your loved ones and property. However, there are special considerations for creating a will in North Dakota.

Fortunately, it is easy to create a valid power of attorney in North Dakota and other estate planning documents using online templates.


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