Guardianship and Conservatorship

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" means 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)

For more information, refer to Guardianship and Conservatorship, from the Montana Department of Public Health and Human Services (DPHHS), and/or Power of Attorney, from MSU Extension.

These forms may be used for personal, non-commercial purposes ONLY.

Power of Attorney

Power of Attorney for Care, Custody or Property of a Minor Child

Statutory Form Power of Attorney, MCA 72-31-353

Power of Attorney – Financial (Form), link to Montana Department of Public Health and Human Services (DPHHS).

Power of Attorney – Medical (Form), link to Montana DPHHS.

Conservatorship

 

Guardianship

Guardianship of a Minor Packet (Complete Packet), from the Montana Supreme Court Commission on Self-Represented Litigants and Montana Legal Services Association. 

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

Guides & Articles Online:

Guardianship and Conservatorship, from the Montana Department of Public Health and Human Services (DPHHS)

Montana Legal Guide to Long-Term Care Planning (2015-2017), by the Montana DPHHS Legal Service Developer Program

Temporary, Limited, and Full Guardianships, by Disability Rights Montana

Personal Representative Responsibilities, from MSU Extension

How to Help an Aging Parent, from the AARP

Grandparents Raising Grandchildren, from the AARP

Power of Attorney, from MSU Extension

Websites:

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  

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