Finance
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
Education
Instrument: Educational Representative Appointment
What is it for?
A school district may appoint an “educational representative” for an adult student whom the district believes is unable to make their own educational decisions. The role of the educational representative is the same as that of the student’s parent if the student were a minor, under the Individuals with Disabilities Education Act (IDEA).
What does it do?
An educational representative may give or withhold informed consent to an adult student’s special education program and make educational decisions on behalf of the student. See In re Butte Sch. Dist. No. 1, 73 IDELR 198 (D. Mont. 2019); Butte Sch. Dist. No. 1 v. C.S., 817 Fed. Appx. 321 (9th Cir. 2020); In the Matter of C.S., 374 Mont. 289 (Mar. 18, 2014). School districts may only appoint educational representatives for an adult student receiving special education services if the district determines that the student is unable to provide the informed consent required by the IDEA.
How does one make it?
The school district may make the appointment of its own initiative or at a student’s request.
When does it come into effect?
Presumably, immediately following the school district’s decision to appoint the educational representative.
How long does it last?
Presumably, until the school district determines that the student is able to provide the informed consent required by the IDEA or until the student becomes ineligible for special education services.
How does one end it?
Students and other interested parties may challenge educational representative appointments in court.
What does an example look like?
Montana does not provide a sample educational representative appointment form.
What else should one know?
Montana appears to lack a formal regulation for appointing educational representatives, although Montana and federal courts have recognized such an appointment.
Updated May 2022
Health
Instrument: Durable Health Care Power of Attorney (DHPOA)
What is it for?
A durable health care power of attorney is a power of attorney where an adult (the “principal”) designates another individual as their “attorney-in-fact” or “agent” in writing to make health care decisions on their behalf.
What does it do?
During a period of incapacity by the principal, an attorney-in-fact appointed under a DHPOA presumably has the authority to make all health care decisions on behalf of the principal that the principal would have had.
How does one make it?
A DHPOA must be in writing and contain the words “This health care power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time” or “This health care power of attorney becomes effective upon the disability or incapacity of the principal” or similar words showing the principal’s intent to confer authority to the attorney-in-fact to make health care decisions for the principal during a period of incapacity. Mont. Code Ann. § 72-5-501(1).
Although Montana’s statute does not specify, presumably two witnesses or notaries are customary.
When does it come into effect?
The attorney-in-fact’s authority to make health care decisions presumably comes into effect upon a determination of the principal’s incapacity. Montana’s statute, however, does not specify who determines the principal’s incapacity.
How long does it last?
A DHPOA lasts until a principal with capacity revokes it, the attorney-in-fact withdraws, or the DHPOA itself specifies a date or occurrence for it to end. Mont. Code Ann. § 72-5-502.
How does one end it?
The principal may revoke or amend a DHPOA, although Montana’s statute does not specify steps for doing so. Mont. Code Ann. § 72-5-502.
What does an example look like?
Montana does not provide a statutory DHPOA form.
What else should one know?
Appointment of a guardian for the principal after a DHPOA does not end the attorney-in-fact’s authority, but the guardian has the same power to revoke or amend the DHPOA that the principal would have had. Mont. Code Ann. § 72-5-501(2).
Updated May 2022
General
No information available at this time.