Montana law provides options for protecting individuals needing assistance with decision-making, such as minors and incapacitated adults. These options include Guardianship, Conservatorship and Power of Attorney.
Please note, Power of Attorney is also covered under the legal topic, End of Life Matters.
Terms & Definitions
- "Conservator" means a person who is appointed by a court to manage the estate of a protected person. MCA 72-1-103 (8)
- "Guardian" means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment but excludes one who is merely a guardian ad litem. MCA 72-1-103 (21)
- "Incapacitated person" means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, except minority, to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the person or which cause has so impaired the person's judgment that the person is incapable of realizing and making a rational decision with respect to the person's need for treatment. MCA 72-5-101 (1)
- "Protected person" means a minor or other person for whom a conservator has been appointed or other protective order has been made. MCA 72-5-101 (2)
- Purpose and basis for guardianship. Guardianship for an incapacitated person may be used only as is necessary to promote and protect the well-being of the person. The guardianship must be designed to encourage the development of maximum self-reliance and independence in the person and may be ordered only to the extent that the person's actual mental and physical limitations require it. An incapacitated person for whom a guardian has been appointed is not presumed to be incompetent and retains all legal and civil rights except those that have been expressly limited by court order or have been specifically granted to the guardian by the court. MCA 72-5-306
- "Ward" is the term used for a person for whom a guardian has been appointed. A "minor ward" is a minor for whom a guardian has been appointed solely because of minority. MCA 72-5-101 (5)
M.C.A. Title 72, Chapter 5. UPC—Persons under Disability Guardianship and Conservatorship
MCA Title 72, Chapter 5, Part 2. Guardians of Minors
MCA Title 72, Chapter 5, Part 3. Guardians of Incapacitated Persons
MCA Title 72, Chapter 5, Part 4. Protection of Property of Minors and Persons Under Disability (Conservatorship)
MCA title 72, Chapter 31, Part 3. Uniform Power of Attorney Act
MCA Title 72, Chapter 5, Part 5. Powers of Attorney
Statutory Form Power of Attorney, MCA 72-31-353
Guides & Articles Online:
Temporary, Limited, and Full Guardianships, by Disability Rights Montana
How to Help an Aging Parent, from the AARP
Legal Service Developer Program, in the Montana DPHHS, Office on Aging
Legal Topics for Seniors, from MontanaLawHelp.org
National Guardianship Association, Inc.
American Bar Association, Commission on Law and Aging
University of Montana Rural Institute: A Center for Excellence in Developmental Disabilities
To find books on these legal topics and others, visit our online catalog or call or email us.