Power of attorney, health care directive and guardianship in Montana

Financial power of attorney in Montana

Law and official form

Law

Uniform Power of Attorney Act

Uniform Power of Attorney Act

Yes (effective October 1, 2011)

Official form

Statutory Form Power of Attorney (MCA 72-31-353)Published by Montana Legislature; the Montana Judicial Branch end-of-life/guardianship forms pages link to it

You do not have to use it.

You do not have to use this form. It includes a notary acknowledgment block and an 'Important information for agent' section. It does not cover health care decisions.

Law: MCA 72-31-301 et seq. (Ch. 109, L. 2011); MCA 72-31-306(1); MCA 72-31-353

Signing rules

How to sign

You must sign the power of attorney (or have someone sign for you in your presence at your direction). The Act does not require a notary or witnesses, but a signature acknowledged before a notary is presumed genuine, and the rules requiring businesses to accept a power of attorney apply to acknowledged ones.

Who signs

Signed by you, or by another person who signs your name in your conscious presence at your direction.

Notary

Not required

Witnesses

None required

Agent's acknowledgment

No separate acceptance form is required; an agent accepts by acting or by other conduct showing acceptance.

Law: MCA 72-31-318

Electronic signing

A power of attorney can be an electronic 'record', and 'sign' includes an electronic signature.

Law: MCA 72-31-302

Law: MCA 72-31-305, 72-31-324, 72-31-325

Durable and springing

Is it durable?

A power of attorney is durable unless it expressly says it ends when you become incapacitated.

Law: MCA 72-31-304

Durable unless it says otherwise?

Yes: it continues if you lose capacity unless it says otherwise.

Starting later (springing)

It can start on a future date or event. If it starts on your incapacity and you named no one to decide, it starts when a physician determines in writing that you are incapacitated (or an attorney, judge or appropriate government official, if you are missing or outside the U.S.).

Law: MCA 72-31-309

What an agent can and cannot do

Needs express permission

• Create, amend, revoke or terminate an inter vivos trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority granted under the power of attorney
• Waive your right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
• Exercise fiduciary powers that you have authority to delegate
• Disclaim property, including a power of appointment
• Unless the document says otherwise, an agent who is not your ancestor, spouse or descendant may not use these powers to create an interest in your property for the agent or someone the agent must support

Law: MCA 72-31-336

Agent duties, pay and court review

Agent duties

• Act in line with your reasonable expectations as far as the agent knows them, and otherwise in your best interest
• Act in good faith
• Act only within the authority the document gives
• Act loyally for your benefit and avoid conflicts of interest
• Act with care, competence and diligence
• Keep a record of all receipts, payments and transactions
• Cooperate with your health care decision-maker
• Try to preserve your estate plan if the agent knows it and it is in your best interest
• On request of you, a guardian, conservator, protective agency or (after death) your personal representative, disclose receipts and payments within 30 days

Agent pay

Unless the power of attorney says otherwise, the agent is entitled to reimbursement of reasonable expenses and to compensation that is reasonable under the circumstances.

Law: MCA 72-31-317

Asking a court to review an agent

You, your agent, a guardian or conservator, your health care decision-maker, your spouse, parent or descendant, a presumptive heir, a beneficiary, a government agency that protects your welfare, your caregiver or another interested person, or a person asked to accept the power of attorney may petition a court to construe it or review the agent's conduct.

Law: MCA 72-31-321

Law: MCA 72-31-319

When it ends and how to revoke it

It ends when

• You die
• You become incapacitated, if the power of attorney is not durable
• You revoke it
• It says it ends, or its purpose is accomplished
• You revoke the agent's authority, or the agent dies, becomes incapacitated or resigns, and no other agent is named
• For the agent's authority: an action is filed to dissolve or annul the agent's marriage to you, or for legal separation, unless the document says otherwise

Divorce ends a spouse's authority

Yes · Divorce rules in Montana (Divorce Law Map)

How to revoke

You can revoke the power of attorney or your agent's authority. The Act does not set a required method of revocation.

Telling others

A revocation does not affect an agent or another person who, without actual knowledge of it, acts in good faith under the power of attorney. A new power of attorney does not revoke an earlier one unless it says so.

Law: MCA 72-31-310

Banks, other states and real estate

Banks and other businesses

A person asked to accept an acknowledged power of attorney must accept it, or ask for an agent's certification, translation or lawyer's opinion, within 7 business days, and must then accept it within 5 business days after receiving it. They may not demand a different form. Exceptions include good-faith doubts and reports of suspected abuse to the Department of Public Health and Human Services. A person who wrongly refuses can be ordered to accept it and made to pay reasonable attorney fees and costs.

Law: MCA 72-31-324, 72-31-325

Signed in another state

A power of attorney signed in another state is valid in Montana if its execution complied with the law of the place that governs it or with the federal military power of attorney rules. A photocopy or electronically sent copy has the same effect as the original.

Law: MCA 72-31-306

Health care directive in Montana

The document and its form

Document

Declaration (living will) under the Montana Rights of the Terminally Ill Act; durable health care power of attorney

Official form

Declaration forms (MCA 50-9-103(2) instructions to physician; 50-9-103(3) appointing a designee)Published by Montana Legislature (forms printed in the statute); Montana DPHHS also publishes Declaration of Living Will formsVersion: Statutory text last amended 2009

You do not have to use it.

Living will

Declaration relating to use of life-sustaining treatment

The living will is a separate document.

An adult of sound mind can sign a declaration directing that life-sustaining treatment be withheld or withdrawn if they are in a terminal condition and cannot decide, and can name a designee to make those decisions. A health care power of attorney or court appointment that expressly authorizes life-sustaining treatment decisions also counts as a declaration naming someone to act for you.

Living will

Law: MCA 50-9-103; MCA 50-9-103, 50-9-105

Signing rules

How to sign

A living will declaration must be signed by you (or someone at your direction) and witnessed by two individuals; a notary is not required. Montana's health care power of attorney statute requires only that you name your agent in writing; it sets no witness or notary requirement. A health care power of attorney keeps working if you become incapacitated only if it contains words showing that intent, such as 'This health care power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time'.

Law: MCA 50-9-103; MCA 72-5-501

Who signs

The declaration must be signed by you or by another person at your direction.

Notary

Not required

Witnesses

2

Law: MCA 50-9-103, 72-5-501

Who can be your agent and what the agent can do

When the agent starts

A declaration becomes operative when it is given to your attending physician or APRN and you are determined to be in a terminal condition and no longer able to make decisions about life-sustaining treatment. A durable health care power of attorney can say it is not affected by later incapacity, or that it becomes effective on your incapacity.

Law: MCA 50-9-105; MCA 72-5-501

Revoking and conflicting documents

Revoking your agent

Montana's health care power of attorney statute does not set a method for revoking it. A person who acts in good faith without actual knowledge of a revocation is protected, and an affidavit from the agent can prove that. If a guardian is appointed for you, the guardian has the same power to revoke or amend the health care power of attorney that you would have.

Law: MCA 72-5-501(2), 72-5-502

Revoking your instructions

You can revoke a declaration at any time and in any manner, whatever your mental or physical condition. It is effective when communicated to your attending physician, APRN or other provider by you or a witness to the revocation.

Law: MCA 50-9-104

Telling others

The provider must make the revocation part of your medical record; a provider or EMS worker who witnesses a revocation must tell the attending physician or APRN.

Law: MCA 50-9-104

Law: MCA 50-9-104, 72-5-501, 72-5-502

If you have no directive

Who decides without a directive

Montana's statute is narrow: if you are in a terminal condition, cannot decide and have no declaration, these relatives in this order may give written consent, witnessed by two people, to withhold or withdraw life-sustaining treatment. A full guardian may also consent. An equal split in a class does not pass the decision to the next class, and a consent that conflicts with your expressed wishes is not valid. It cannot be used to withhold treatment from a pregnant patient if the fetus could probably develop to live birth.

1. Spouse
2. An adult child (if more than one, a majority of those reasonably available)
3. Parents
4. An adult sibling (if more than one, a majority of those reasonably available)
5. The nearest other adult relative by blood or adoption who is reasonably available

Law: MCA 50-9-106

Other states, registry and medical orders

Signed in another state

A declaration signed in another state in a manner substantially similar to Montana's rules and valid under that state's law is effective in Montana.

Law: MCA 50-9-111

Registry

Health Care Declaration Registry (Montana Attorney General)

Law: MCA 50-9-501 to 50-9-505

Guardianship and conservatorship in Montana

What guardianship or conservatorship is

What it is called

Full guardian, limited guardian, temporary guardian (of an incapacitated person); conservator for property under protective proceedings

When a court may appoint one

The court may appoint a guardian only if it is satisfied that the person is incapacitated, that their identified needs cannot be met by a less restrictive alternative, and that court intervention is necessary to meet essential requirements for physical health or safety. If managing money would be enough, the court treats the case as a protective (conservatorship) proceeding. A 'less restrictive alternative' includes supported decision-making, appropriate technological assistance and a representative payee.

Law: MCA 72-5-305, 72-5-306, 72-5-316

Kinds

• Full guardian
• Limited guardian (only the powers listed in the order)
• Temporary guardian (up to 6 months)
• Conservator or protective order for property

Law: MCA 72-5-305, 72-5-306, 72-5-312, 72-5-315, 72-5-316, 72-5-317; MCA 25-1-201

Who can ask, which court and your own choice

Who may ask

The allegedly incapacitated person or any person interested in their welfare, including the county attorney.

Law: MCA 72-5-315(1)

Court

Montana district court.

Choosing your own

You can nominate a guardian or conservator in a power of attorney; the court follows your most recent nomination except for good cause or disqualification. You can nominate a guardian of the person in a durable health care power of attorney. A person you nominated has first priority if you had capacity to make a reasonably intelligent choice.

Law: MCA 72-31-308; MCA 72-5-501; MCA 72-5-312

Effect on a power of attorney

If a conservator or guardian of your estate is appointed, your financial power of attorney continues and the agent is accountable to that fiduciary as well as to you, unless the court limits, suspends or terminates it. A guardian of your person can revoke or amend your health care power of attorney as you could.

Law: MCA 72-31-308; MCA 72-5-501

Cost, fee waiver and forms

Filing fee

$70 clerk of district court fee to file a petition for the appointment of a guardian or conservator.

Law: MCA 25-1-201(1)(m)

Fee waiver

Statement of Inability to Pay Court Costs and Fees.

Source: Montana Judicial Branch form

Forms

• Fee Waiver - Statement of Inability to Pay Court Costs and Fees (PDF)
• Alternative Approaches to Guardianship Factsheet (Montana WINGS)
• Guardianship & Conservatorship forms page (Montana Judicial Branch)

Steps

Steps

Other options and where to report abuse

Supported decision-making

Montana has no supported decision-making law.

Less restrictive options

• Supported decisionmaking: People the person chooses help them understand and communicate their own decisions.
• Appropriate technological assistance: Tools and technology that help the person manage on their own.
• Representative payee: A payee manages government benefit payments.
• Powers of attorney and health care declarations: Documents the person signs while able, naming who acts for them.

Report abuse or exploitation

Montana DPHHS Adult Protective Services · 1-844-277-9300

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: MCA 72-5-305(3), (5); MCA 72-5-316

Good to know in Montana

• Montana's living will (declaration) needs two witnesses and no notary, and can name a designee to decide about life-sustaining treatment.

  Law: MCA 50-9-103

• Since 2021, a Montana court may appoint a guardian only if the person's needs cannot be met by a less restrictive alternative such as supported decisionmaking, technology or a representative payee.

  Law: MCA 72-5-305, 72-5-316

• The statutory fee to file a guardianship or conservatorship petition is $70.

  Law: MCA 25-1-201(1)(m)

• Living will declarations can be filed with the Attorney General's Health Care Declaration Registry; not filing does not affect validity.

  Law: MCA 50-9-502

Questions about powers of attorney in Montana