Instrument: Power of Attorney (POA)
What is it for?
The POA allows an adult (the “principal”) to appoint one or more other adults (the “agent” or “attorney-in-fact”) to make decisions about the principal’s property on the principal’s behalf. Note that a POA cannot be used to appoint an attorney in fact to make health care decisions on the principal’s behalf.
What does it do?
The agent has the authority make decisions on the principal’s behalf with respect to the principal’s property. A POA may give the agent either this broad, “general” authority, or “limited” authority that is specific to only certain kinds of decisions or portions of the principal’s property. Certain types of decisions, such as making gifts, require an express grant of authority in the POA. Mont. Code Ann. § 72-31-336.
A POA is presumed to be durable, that is, to remain valid despite the principal’s incapacity, unless it expressly provides that it is terminated by the incapacity of the principal. Mont. Code Ann. § 72-31-304.
An agent has must act in good faith, in accordance with the principal’s reasonable expectations as known to the agent, and within the scope of the POA. The agent has a duty to act loyally for the principal’s benefit, to avoid conflicts of interest, to act with care, competence, and diligence, and to coordinate with any agent appointed to make health care decisions for the principal. Mont. Code Ann. § 72-31-319.
Third parties generally must accept acts by an agent as if they had been done by a principal unless they know that the agent’s authority has ended or the POA is invalid. Third parties may also request a certification from the agent that the agent’s authority remains in effect. Mont. Code Ann. § 72-31-325.
How does one make it?
A POA must be in writing and signed by the principal or another individual signing on behalf of the principal in the principal’s “conscious presence,” and should be notarized. Mont. Code Ann. § 72-31-305.
When does it come into effect?
An agent’s authority comes into effect immediately upon execution of the POA, unless the principal specifies POA that it becomes effective upon some future event, such as the principal’s incapacity. Mont. Code Ann. § 72-31-309(1-2).
“Incapacity” is defined as the principal’s inability to manage property or business affairs due to an impairment in the principal’s ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Mont. Code Ann. § 72-31-302(5).
Unless the POA states otherwise, an incapacity determination will be made by either a physician or an attorney at law, judge, or other government official. Mont. Code Ann. § 72-31-309(3).
How long does it last?
A POA ends when either the principal dies or revokes the POA, the POA’s purpose is accomplished, the agent dies or resigns, or if the POA states that it ends on a certain date. Mont. Code Ann. § 72-31-310.
How does one end it?
Presumably, a principal may revoke a POA by destroying it. For a revocation to be effective, the principal must also notify the agent of the revocation. Mont. Code Ann. § 72-31-310(4). A subsequent POA does not automatically revoke a previously executed POA unless the subsequent POA specifically states so. Mont. Code Ann. § 72-31-310(6).
What does an example look like?
Montana provides a statutory power of attorney form at Mont. Code Ann. § 72-31-353.
What else should one know?
Montana has adopted the Uniform Power of Attorney Act.
A POA is not automatically terminated by a subsequent appointment of a conservator or a guardian of the principal’s estate. Mont. Code Ann. § 72-31-308.
Updated May 2022