Mont. Code Ann. » TITLE 72. ESTATES, TRUSTS, AND FIDUCIARY RELATIONSHIPS · CHAPTER 5. UPC -- PERSONS UNDER DISABILITY GUARDIANSHIP AND CONSERVATORSHIP · Part 5. Powers of Attorney
Montana Code Annotated

Mont. Code Ann. § 72-5-501 (2026)

When Health Care Power Of Attorney Not Affected By Disability

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  1. MCA Contents
  2. TITLE 72
  3. CHAPTER 5
  4. Part 5
  5. 72-5-501 When health care power of attorney not affected by disability

TITLE 72. ESTATES, TRUSTS, AND FIDUCIARY RELATIONSHIPS

CHAPTER 5. UPC -- PERSONS UNDER DISABILITY GUARDIANSHIP AND CONSERVATORSHIP

Part 5. Powers of Attorney

When Health Care Power Of Attorney Not Affected By Disability

72-5-501. When health care power of attorney not affected by disability. (1) A durable health care power of attorney is a power of attorney by which a principal designates another as the principal's attorney-in-fact or agent in writing and the writing contains 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 intent of the principal that the authority conferred must be exercisable notwithstanding the principal's subsequent disability or incapacity and, unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument.

(2) If a guardian is appointed for the principal, the attorney-in-fact or agent, during the continuance of the appointment, is accountable to the guardian as well as the principal. The guardian has the same power to revoke or amend the health care power of attorney that the principal would have had if the principal were not disabled or incapacitated. A principal may nominate, by a durable health care power of attorney, the guardian of the principal's person for consideration by the court if protective proceedings for the principal's person or estate are later commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable health care power of attorney except for good cause or disqualification.

History: En. 91A-5-501 by Sec. 1, Ch. 365, L. 1974; R.C.M. 1947, 91A-5-501; amd. Sec. 1, Ch. 283, L. 1985; amd. Sec. 24, Ch. 582, L. 1989; amd. Sec. 2439, Ch. 56, L. 2009; amd. Sec. 26, Ch. 109, L. 2011.

Notes of Decisions
Cited in 4 cases, 1990–2001 · leading case: Cruzan ex rel. Cruzan v. Dir., 497 U.S. 261 (1990).
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Cruzan ex rel. Cruzan v. Dir., 497 U.S. 261 (1990). · cites it 2× “1990); Mont. Code Ann. §§ 72-5-501 to 72-5-502 (1989); Neb.”
In re the Est. of Bayers, 2001 MT 49, 21 P.3d 3. · cites it 4× “See Mont. Code Ann. §72-5-501 (2). Thus, in the event that you are taking direction from or have an attorney client relationship with any person claiming to be Ms.”
In re the Est. of Bayers, 1999 MT 162, 983 P.2d 339. · cites it 2× “As an initial matter, we note that at the time Tracy contracted for the legal services of the Crowley firm, she was acting as Shirley’s attorney-in-fact under a durable power of attorney, and that § 72-5-501(1), MCA, provides that “[a]ll acts done by the attorney-in-fact…”
Torgenrud v. Benson (In Re Wolcott), 194 B.R. 477 (Bankr. D. Mont. 1996). · cites it 2× “On Schedule B, line item 18, Wolcott failed to list a durable power of attorney, executed pursuant to Mont.Code Ann. § 72-5-501 from Benson to Wolcott, (Exhibit A), which gives Wolcott comprehensive control over all of Benson’s assets.”
Mont. Code Ann. § 72-5-501(1): 1 case
In re the Est. of Bayers, 1999 MT 162, 983 P.2d 339. “As an initial matter, we note that at the time Tracy contracted for the legal services of the Crowley firm, she was acting as Shirley’s attorney-in-fact under a durable power of attorney, and that § 72-5-501(1), MCA, provides that “[a]ll acts done by the attorney-in-fact…”
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