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Medical Power of Attorney in Montana: Health Care Power of Attorney and Living Will Declaration
Montana's health care power of attorney needs durability wording to outlast incapacity, and its living will declaration needs two witnesses. Here is how both work, and what happens without either.
By naveen · Updated · How we research our guides
What to know
- A Montana durable health care power of attorney names an agent for medical decisions; under MCA 72-5-501 it must contain words showing it continues despite your parent's later incapacity.
- The two sections on health care powers of attorney, MCA 72-5-501 and 72-5-502, set no witness, notary or form requirement.
- A living will, called a declaration under the Montana Rights of the Terminally Ill Act, must be signed and "witnessed by two individuals" (MCA 50-9-103), and the statute prints optional forms.
- Without a declaration, Montana sets an order of relatives, starting with the spouse, who can consent to withholding life-sustaining treatment in a terminal condition (MCA 50-9-106).
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A Montana medical power of attorney, called a durable health care power of attorney, is your parent's written appointment of a health care agent, and to outlast incapacity it must contain wording saying so. Under MCA 72-5-501, that means words such as "This health care power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time" or similar words showing the authority continues after incapacity. Montana's living will is a separate document, a declaration about life-sustaining treatment under the Montana Rights of the Terminally Ill Act.
What is a health care power of attorney in Montana?
It's a power of attorney limited to health care. Montana's Uniform Power of Attorney Act, which governs financial powers of attorney, doesn't apply to "a power to make health care decisions," and the statutory financial form says it "does not authorize the agent to make health care decisions for you." See our Montana power of attorney guide for the financial document.
Unlike a financial power of attorney, which is durable by default, a health care power of attorney counts as durable under MCA 72-5-501 only when it contains durability words. The Department of Public Health and Human Services sample form says: "This Durable Power of Attorney for Health Care shall not be affected by my incapacity or disability."
How is it different from a living will declaration?
A health care power of attorney names a person to make health care decisions; a declaration directs what happens to life-sustaining treatment in a terminal condition.
| Document | What it does | Signing rule |
|---|---|---|
| Durable health care power of attorney | Names an agent for health care decisions | None set in MCA 72-5-501 and 72-5-502; needs durability wording |
| Declaration (living will) | Directs that life-sustaining treatment be withheld or withdrawn in a terminal condition, and can name someone to make that decision | Signed and witnessed by two individuals (MCA 50-9-103) |
The two connect. If a health care power of attorney "contains written authorization to make decisions regarding the withholding or withdrawal of life-sustaining treatment," it counts as a declaration naming that agent under the Rights of the Terminally Ill Act (MCA 50-9-103). For the general picture, see power of attorney vs. advance directive.
How do you sign a Montana health care power of attorney?
Your parent signs a written designation of the agent that includes the durability wording. MCA 72-5-501 and 72-5-502, the two sections in that part of the code, don't require witnesses, a notary or a particular form, and don't list people who are barred from serving as agent.
The Department of Public Health and Human Services posts a free sample Health Care Power of Attorney form, which ends with a notary acknowledgment and says "This power of attorney is effective immediately." The Department's forms page goes further than the two statute sections and says "A Health Care Power of Attorney must be signed in front of a notary." Its legal document clinics help residents 60 and older, people with disabilities and enrolled tribal members "draft, review, notarize, and copy estate planning documents at no cost."
If a guardian is later appointed, the agent is accountable to the guardian as well as your parent, and "The guardian has the same power to revoke or amend the health care power of attorney that the principal would have had." Your parent can nominate the guardian of their person in the document.
How do you sign a Montana living will declaration?
Your parent signs it, or someone signs at their direction, and two individuals witness it. Under MCA 50-9-103, any adult "of sound mind and 18 years of age or older may execute at any time a declaration." It "must be signed by the declarant or another at the declarant's direction and must be witnessed by two individuals."
The statute prints two optional forms, which "may but need not be" used: one directing the attending physician or advanced practice registered nurse to withhold or withdraw treatment, and one appointing a person, plus an alternate, to make that decision. The person named must also be of sound mind and 18 or older. Each form's witness line reads, "The declarant voluntarily signed this document in my presence."
Section 50-9-103 doesn't list people who can't witness, and it doesn't call for a notary. The state's instructions for its sample form say the document "does not need to be notarized, but should be witnessed by two people." Give a copy to your parent's doctor; a provider who receives one "shall make it a part of the declarant's medical record."
When does the living will declaration apply?
Under MCA 50-9-105, it becomes operative when it's communicated to the attending physician or advanced practice registered nurse, and your parent is determined "to be in a terminal condition and no longer able to make decisions regarding administration of life-sustaining treatment." A terminal condition is one that, without life-sustaining treatment, will "result in death within a relatively short time" in the clinician's opinion.
While your parent can decide, they decide. Comfort care continues: the law doesn't affect the duty "to provide treatment, including nutrition and hydration, for a patient's comfort care or alleviation of pain." A provider unwilling to follow a declaration must take reasonable steps to transfer your parent's care. Treatment can't be withheld under a declaration from a patient known to be pregnant while it's probable the fetus will develop to live birth.
What happens if your parent has no living will declaration?
Montana sets an order for one decision: withholding or withdrawing life-sustaining treatment from a person in a terminal condition who can't decide and has no effective declaration. Under MCA 50-9-106, a written consent "witnessed by two individuals" can be given to the attending clinician by, in order of priority:
- the spouse;
- an adult child, or a majority of the adult children reasonably available;
- the parents;
- an adult sibling, or a majority of the adult siblings reasonably available;
- the nearest other adult relative by blood or adoption.
If a class isn't available or declines, the next one decides, but "an equal division in a class does not authorize the next class to decide." A consent "is not valid if it conflicts with the expressed intention of the individual," and a full guardian may also decide. The sections we read don't set a similar order for other health care decisions; a health care power of attorney is how your parent chooses for those. See conservatorship and guardianship.
How do you revoke a Montana advance directive?
A living will declaration can be revoked at any time and in any manner, while the health care power of attorney sections set no method.
- Living will declaration. "A declarant may revoke a declaration at any time and in any manner, without regard to mental or physical condition." It takes effect once communicated to the attending physician, attending advanced practice registered nurse or another health care provider by your parent or a witness to the revocation (MCA 50-9-104).
- Health care power of attorney. MCA 72-5-501 and 72-5-502 don't prescribe a method for your parent, though a guardian has the same power to revoke or amend it. Giving written notice to the agent and every provider holding a copy leaves a clear record.
What about POLST?
A POLST, Provider Orders for Life-Sustaining Treatment, is a set of medical orders kept separate from an advance directive; the form asks the provider to check whether your parent has a living will or other advance directive. The Montana Department of Public Health and Human Services publishes the form, which covers CPR, medical interventions and artificial nutrition, and is signed by both the provider and your parent or their legal decision-maker. The form says, "Completing a POLST is ALWAYS VOLUNTARY." Montana law separately requires emergency medical personnel to follow the state's do not resuscitate protocol when shown DNR identification or a do not resuscitate order from a physician or advanced practice registered nurse.
Frequently asked questions
Does a medical power of attorney need to be notarized in Montana?
The two sections on health care powers of attorney, MCA 72-5-501 and 72-5-502, don't require a notary or witnesses, though the state's sample form includes a notary block and its forms page says to sign before a notary. What they do require is wording showing the power continues after incapacity. A living will declaration is different: it must be witnessed by two individuals.
Who can witness a living will in Montana?
MCA 50-9-103 requires two witnesses and doesn't list anyone who is barred from witnessing. Each witness signs that your parent "voluntarily signed this document in my presence." The state's instructions say a notary isn't needed. If your parent wants extra caution, an attorney can advise on choosing witnesses.
Where can I get a Montana medical power of attorney form?
The Montana Department of Public Health and Human Services posts a free sample health care power of attorney, along with living will declaration forms and instructions. The living will forms follow those printed in MCA 50-9-103. Its legal document clinics help eligible residents complete and notarize them at no cost.
Who makes medical decisions in Montana if there's no advance directive?
For withholding or withdrawing life-sustaining treatment in a terminal condition, MCA 50-9-106 gives the spouse first priority, then adult children by majority, parents, adult siblings by majority, and the nearest other adult relative. The sections we read set no similar order for other decisions, so a health care power of attorney matters.
Is an advance directive from another state valid in Montana?
For living will declarations, yes. MCA 50-9-111 makes a declaration executed in another state "in a manner substantially similar to" Montana's, and in compliance with that state's law, effective in Montana. The health care power of attorney sections we read don't address out-of-state documents, so an attorney can confirm one covers both states.
Can my parent change their mind after signing?
Yes. A living will declaration can be revoked at any time and in any manner, regardless of your parent's condition, once it's communicated to a provider. The health care power of attorney sections don't set a method, so written notice to the agent and the doctor keeps everyone current.
Getting started
A health care power of attorney only helps if it's signed while your parent can sign it, with the durability wording Montana requires, and if a copy reaches the doctor. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- Montana Code Annotated, Powers of Attorney (72-5 part 5): the durable health care power of attorney (72-5-501, 72-5-502).
- Montana Code Annotated, Rights of the Terminally Ill Act (50-9 part 1): definitions (50-9-102), signing and forms (50-9-103), revocation (50-9-104), when a declaration applies (50-9-105), consent by relatives (50-9-106) and out-of-state declarations (50-9-111); published by the Montana Legislature.
- Montana Code Annotated, Rights of the Terminally Ill Act (50-9 part 2): comfort care, pregnancy and transfers (50-9-202, 50-9-203).
- Montana DPHHS, Sample legal forms: the sample health care power of attorney and living will declaration forms.
- Montana DPHHS, Aging and Disability Legal Assistance: free legal document clinics.
- Montana DPHHS, POLST: the Montana POLST form.
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