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Power of Attorney in Montana: Requirements, the Statutory Form, and How to Get One
A Montana power of attorney needs only your parent's signature, but notarizing it is what puts banks on a deadline and lets it be recorded. Here is what the Uniform Power of Attorney Act requires.
By naveen · Updated · How we research our guides
What to know
- A Montana power of attorney must be signed by your parent, or by someone in their conscious presence at their direction; the act doesn't require a witness or notary for validity (MCA 72-31-305).
- Notarizing gives the signature a presumption of genuineness, and the rules requiring banks to accept on a deadline apply only to notarized powers of attorney.
- It's durable by default and effective immediately unless it says otherwise.
- Montana's statutory form says it "does not authorize the agent to make health care decisions for you"; that takes a separate health care power of attorney.
- Retirement Checklist turns your parent's situation into a short, ordered plan, so the power of attorney sits in the right place among everything else.
A power of attorney in Montana "must be signed by the principal or in the principal's conscious presence by another individual directed by the principal to sign the principal's name on the power of attorney" (MCA 72-31-305). That's the only execution requirement in the act. The same section adds that a signature acknowledged before a notary "is presumed to be genuine," and the bank-acceptance deadlines in MCA 72-31-325 apply only to an acknowledged power of attorney.
What is a durable power of attorney in Montana?
It's a power of attorney that isn't terminated by your parent's incapacity, and in Montana a power of attorney is durable unless it says otherwise. The law is the Uniform Power of Attorney Act, MCA 72-31-301 to 72-31-367, enacted in 2011. A power of attorney is "a writing or other record that grants authority to an agent to act in the place of the principal." Your parent is the principal.
Under MCA 72-31-304, a power of attorney "is durable unless it expressly provides that it is terminated by the incapacity of the principal." The act also applies to powers of attorney signed before October 1, 2011, and those remain valid if they met the law in force when signed. For the timing questions around a parent's financial document, see our guide to power of attorney for an elderly parent. Health care decisions need a separate document; see our Montana medical power of attorney guide.
What does Montana require for a power of attorney to be valid?
Only your parent's signature; a notary is optional for validity but has legal effects.
| Step | What the law says | Why it matters |
|---|---|---|
| Signature | Signed by your parent, or by someone in their conscious presence at their direction | The only execution requirement (72-31-305) |
| Notary (optional) | A signature acknowledged before a notary "is presumed to be genuine" | Needed for the bank-acceptance rules (72-31-325) and to record it for real estate |
The act doesn't call for witnesses. Montana's statutory form ends with a signature line and a notary acknowledgment, and has no witness lines. A copy works too: "a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original," unless another statute says otherwise.
Is there an official Montana power of attorney form?
Yes. MCA 72-31-353 sets out the "MONTANA STATUTORY FORM POWER OF ATTORNEY," and a document "substantially in the following form may be used." Your parent initials each subject they want to grant, such as real property, banks, retirement plans and taxes, or initials "All Preceding Subjects."
The form's notice spells out what your parent is handing over. It explains that the agent "will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself," and that "Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions."
The state's Department of Public Health and Human Services posts a free sample financial power of attorney built on the same subjects, with optional special instructions such as requiring a second signature on large transactions. 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."
Which powers need to be spelled out?
Creating or changing a trust, making a gift, creating or changing survivorship rights or beneficiary designations, and delegating authority each need an express grant. Under MCA 72-31-336, an agent can do these and a few other listed acts "only if the power of attorney expressly grants the agent the authority."
Montana's statutory form doesn't have a separate checklist for these; they go in the Special Instructions. The form also states a built-in limit: "An agent that is not my ancestor, spouse, or descendant MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions."
When does it take effect, and when does it end?
It's "effective when executed" unless it says it starts at a future date or event (MCA 72-31-309). If it starts on incapacity and no one is named to decide, a written determination by a physician, or in some cases an attorney, judge or government official, triggers it.
Under MCA 72-31-310, it ends when your parent dies, revokes it, when the document says it ends or its purpose is accomplished, or when the agent can no longer serve and no other agent is named. An agent's authority also ends, unless the document says otherwise, when "an action is filed for the dissolution or annulment of the agent's marriage to the principal or their legal separation." That's the filing, not the final decree.
A court-appointed conservator doesn't end it: "The power of attorney is not terminated and the agent's authority continues unless limited, suspended, or terminated by the court." If your parent names coagents, each can act independently unless the document says otherwise.
What does the agent have to do?
Under MCA 72-31-319, whatever the document says, an agent must act according to your parent's known reasonable expectations, otherwise in their best interest, in good faith, and only within the authority granted. Unless the document says otherwise, the agent must also act loyally, avoid conflicts, act with care and diligence, and "keep a record of all receipts, disbursements, and transactions made on behalf of the principal."
If your parent, a guardian, a conservator or a protective government agency asks for those records, the agent has 30 days to comply or explain why more time is needed. Our guide to protecting a parent from scams covers the warning signs any agent should know.
Do banks have to accept a Montana power of attorney?
Yes, for a notarized one, within set deadlines, unless a listed exception applies. Under MCA 72-31-325, "a person shall either accept an acknowledged power of attorney or request a certification, a translation, or an opinion of counsel" no later than 7 business days after it's presented, then accept within 5 business days of receiving what they asked for. They "may not require an additional or different form of power of attorney."
The statute lists reasons a bank can still refuse, such as a good-faith belief the document isn't valid, actual knowledge it was terminated, or a report to the state health and human services department of suspected abuse or exploitation. A wrongful refusal can bring a court order to accept it and liability for reasonable attorney fees. The act also says other law applicable to financial institutions controls if it's inconsistent.
Does a Montana power of attorney need to be recorded?
Not as a rule: the recording statutes we read don't require a power of attorney to be recorded. But "before the instrument can be recorded, its execution must be acknowledged" (MCA 70-21-203), so a power of attorney an agent will use for real estate needs a notary.
Once one is recorded, revoking it takes the same formality. Under MCA 70-21-308, a recorded power to convey real property isn't revoked "unless the instrument containing such revocation is also acknowledged or proved, certified, and recorded in the same office in which the instrument containing the power was recorded."
How do you get a power of attorney for an elderly parent in Montana?
Your parent makes it by signing it, and a notary's acknowledgment adds the bank-acceptance and recording effects. The steps:
- Talk with your parent about who they'd want acting for them, and who should succeed them.
- Choose a document: the statutory form, the state's sample form, or one drafted for your parent's situation.
- Go through the subjects with your parent; they initial only what they want to grant, and add any gift or beneficiary powers in the Special Instructions.
- Your parent signs and acknowledges it before a notary.
- Give the agent a copy and keep the original somewhere safe.
Your parent has to be able to sign it. If that moment has passed, the family may need a court process instead, described in conservatorship and guardianship. If the situation is complicated, it helps to know what an elder law attorney does.
How do you revoke a power of attorney in Montana?
Revocation by your parent ends a power of attorney under MCA 72-31-310, but the act doesn't prescribe a method. People who act in good faith without "actual knowledge" of the termination are protected, so a written, dated revocation sent to the agent and every bank holding a copy leaves a clear record. If the power of attorney was recorded for real estate, the revocation must be acknowledged and recorded in the same county office.
Signing a new power of attorney doesn't cancel an older one unless the new one says so.
How much does a power of attorney cost in Montana?
The statutory form is printed in the law and free to use, and the state's sample form is free to download. The notary fee is capped: under MCA 1-5-626, "A notary public may charge a fee not to exceed $10 for each notarial act," including an acknowledgment. The same section allows an extra fee, agreed in advance, for travel (no more than the IRS standard mileage rate) or for notarizing remotely, and a notary who charges must "display in English a list of the fees the notary public will charge."
An attorney who drafts or reviews one charges at the attorney's own rates.
Frequently asked questions
Does a power of attorney need to be notarized in Montana?
Not to be valid. MCA 72-31-305 requires only your parent's signature. But a notarized signature is presumed genuine, the 7-business-day rule for banks applies only to notarized powers of attorney, and a power of attorney must be acknowledged before it can be recorded for real estate. Montana's statutory form ends with a notary block.
Is a Montana power of attorney durable?
Yes, by default. Under MCA 72-31-304, a power of attorney "is durable unless it expressly provides that it is terminated by the incapacity of the principal." Montana doesn't require special durability wording for a financial power of attorney, and the agent's authority continues despite time passing.
Where can I get a Montana power of attorney form?
The Montana Statutory Form Power of Attorney is printed in MCA 72-31-353, and the Department of Public Health and Human Services posts a free sample financial power of attorney. Using either is optional; a document drafted for your parent's situation also works. Signing before a notary triggers the bank-acceptance rules.
Can a Montana power of attorney make medical decisions?
Not the financial one. The act doesn't apply to "a power to make health care decisions," and the statutory form says so. Montana handles that with a separate durable health care power of attorney, which needs its own wording to survive incapacity. Our guide to Montana's medical power of attorney explains it.
What if my elderly parent can no longer sign?
Someone can sign your parent's name in their conscious presence at their direction, but your parent still has to direct it. If your parent can no longer make that decision, a court guardianship or conservatorship may be the remaining route. A power of attorney can nominate a conservator or guardian for the court to consider.
Is a power of attorney from another state valid in Montana?
Yes, if it met the right law when signed. Under MCA 72-31-306, a power of attorney executed outside Montana is valid there if it complied with the law of the jurisdiction that governs its meaning, or with the federal requirements for a military power of attorney.
Getting started
A power of attorney is time-sensitive, because it needs your parent's signature while they can still give it, and in Montana a notary is what triggers the bank-acceptance rules. The plan this site builds asks four questions, including which state your parents live in, and puts the handful of steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- Montana Code Annotated, Uniform Power of Attorney Act (72-31 part 3): execution (72-31-305), durability (72-31-304), validity (72-31-306), effective date (72-31-309), termination (72-31-310), duties (72-31-319), acceptance (72-31-324, 72-31-325), express grants (72-31-336) and the statutory form (72-31-353); published by the Montana Legislature.
- MCA 70-21-203, Acknowledgment for recording: a document must be acknowledged before it can be recorded.
- MCA 70-21-308, Revoking a recorded power: how a recorded power of attorney for real estate is revoked.
- MCA 1-5-626, Notary fees: the maximum notary fee.
- Montana DPHHS, Aging and Disability Legal Assistance: free legal document clinics for older adults.
- Montana DPHHS, Sample legal forms: the sample financial power of attorney.
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