How To Make a Power of Attorney in Montana FAQ

What Is a Power of Attorney?

A power of attorney (POA) is a legal document in which a principal names someone else as their “agent” or “attorney in fact” to act on behalf of the principal. You can find the Montana Uniform Power of Attorney Act covering the laws regarding powers of attorney in statutes §72-31-301 through §72-31-367 of the Montana code.

There are different types of powers of attorney used for different purposes. In a financial power of attorney, your agent can handle your legal and financial matters. In a medical power of attorney, your agent can manage your healthcare information and make medical decisions for you when you cannot.

If you are unable to make your own decisions about your money and personal life, your family members may have to ask a court for a conservatorship. The court then gives your conservator the legal authority to handle your affairs. But if you already have a power of attorney with an agent to step in your place, your loved ones don’t have to spend time and money in court.

Who Can Be My Agent?

A competent person, age 18 or older, can be your agent in Montana. You can name a family member, friend, financial advisor, accountant, or attorney. When choosing your agent, find someone who is trustworthy, responsible, and organized. An agent has a fiduciary duty to act in good faith in the principal’s best interest and avoid conflicts. Still, they have broad control over the principal’s property and money.

Avoid using co-agents if possible. If your agents must work together, nothing will get done if they disagree. If they can act independently, they may end up reversing each other’s actions. Instead, name one person as your primary agent and another as your backup or successor agent if your primary agent is unavailable or unwilling to serve.

What Can My Agent Do in Montana?

Your agent can do anything you give them the power to do, such as managing your bank accounts, buying and selling real estate, and making financial decisions. Under Montana §72-31-339 through §72-31-352, you can give your agent general authority to handle the following subjects:

• Real property (real estate)
• Tangible personal property (personal possessions)
• Stocks and bonds
• Commodities and options
• Banks and other financial institutions
• Operation of entity or business
• Insurance and annuities
• Estates, trusts, and other beneficial interests
• Claims and litigation
• Personal and family maintenance
• Benefits from governmental programs or civil or military service
• Retirement plans
• Taxes
• Gifts

There are additional specific powers under §72-31-336 that you must specifically authorize, which include the following:

• Creating, amending, revoking, or terminating a living trust
• Making a gift
• Creating or changing rights of survivorship
• Creating or changing a beneficiary designation
• Waiving the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
• Exercising fiduciary powers that the principal has authority to delegate
• Disclaiming property, including a power of appointment

Some of these powers allow your agent to give away your property. However, you may want your agent to reduce your estate to qualify you for government benefits such as Medicare or minimize your estate taxes. Talk to your agent about how you want them to handle your money and property so they can follow your wishes.

What Is a Durable Power of Attorney in Montana?

A durable power of attorney remains effective even if you become incapacitated, meaning it allows your agent to continue making decisions for you. Under §72-31-304, the power of attorney is durable unless you expressly provide that it terminates upon your incapacity.

When Is the Power of Attorney Effective?

Under §72-31-309, a power of attorney is effective when signed unless the principal states that it becomes effective at a future date or upon the occurrence of a future event or contingency. For example, you can make your power of attorney effective upon your incapacity, called a “springing” POA.

When Does the Power of Attorney End?

When you revoke your power of attorney or die, your power of attorney ends. There are other events under §72-31-310 when your power of attorney and your agent’s authority ends, such as:

• You are incapacitated, and your power of attorney is non-durable.
• The power of attorney terminates.
• The purpose of the power of attorney is accomplished.
• Your agent dies or is unable to act, and you do not have a backup or successor agent.
• You revoke your agent’s authority.

Additionally, if you name your spouse as your agent and you file for divorce or annulment, their authority ends unless you provide otherwise in your power of attorney.

Does Montana Have a Statutory Power of Attorney?

Yes, Montana has a statutory power of attorney form under §72-31-353. However, you do not have to use the statutory form. You have other options, such as creating a power of attorney yourself or hiring an estate planning attorney.

Can I Make My Power of Attorney in Montana?

Yes. You must be 18 or older and competent. When making your power of attorney, you should know who you want as your agent and what powers you want to give them. Many people looking for do-it-yourself resources use online power of attorney forms and follow state law signing requirements. However, you may want to talk with an attorney for legal advice if you have other questions about power of attorney documents.

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How Do I Make My Power of Attorney Valid in Montana?

Under Montana §72-31-305, the principal must sign the power of attorney or direct someone to sign it for them in their conscious presence. A notary public must also attest to the principal’s signature for a valid power of attorney in Montana.

Do I Have to Notarize My Power of Attorney in Montana?

Yes. In Montana, a power of attorney must be acknowledged by a notary or other individual authorized by law to take acknowledgments per Section 72-31-305.

What Should I Do After Signing My Power of Attorney?

After signing your power of attorney, you should talk to your agent about your expectations and give them a copy of your document. Provide copies to banks or other third parties that you want to notify. Keep your original document in a secure location. A bank or financial institution may ask your agent to sign an agent certification form in which they state that your power of attorney is effective and that they have the authority to act as your agent.

Does My Power of Attorney Agent Get Paid in Montana?

In Montana, unless you state otherwise in your power of attorney, your agent may receive reasonable compensation for their time and reimbursement of reasonable expenses under your power of attorney.

Is My Montana Power of Attorney Valid in Another State?

Yes. Generally, other states will honor your Montana power of attorney if it is created and executed according to Montana law.

Can I Revoke My Montana Power of Attorney?

Yes. As long as you are mentally competent, you can revoke your Montana power of attorney anytime. To revoke it, you should provide a written notice to your agent and any banks or third parties that rely on the POA. Additionally, the revocation should also be recorded if your POA is recorded.

What Estate Planning Documents Should I Have in Montana?

In addition to a financial power of attorney, other essential estate planning documents include a health care directive and a last will and testament.

A healthcare directive combines a medical power of attorney and a living will. This document may also be called an advance directive. In your healthcare directive, you name an agent to speak with your healthcare providers, access your medical records, and make healthcare decisions on your behalf. You can also include your wishes about your end-of-life care, such as what life-sustaining measures you want to be given or withheld if you have an end-stage or terminal illness.

A last will and testament is a legal document that lets you decide who handles your estate, inherits your property, and cares for your minor children. Without a will, you die “intestate,” and a probate court follows state intestacy laws to distribute your property and decides who handles your estate and cares for your children. With a will, you have peace of mind knowing you are protecting your loved ones according to your wishes.

Fortunately, by using online estate planning templates, it is easy to create a valid power of attorney and other estate planning documents in Montana.