Montana Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   Rather than automatically waiting for a doctor to certify incapacity, Montana lets you decide directly in the document whether your Health Care Power of Attorney, which names a trusted adult (your agent) to make health care decisions for you, starts working the moment you sign it or only once you become disabled or incapacitated (Montana Code Annotated Section 72-5-501).

2. 2

   Montana's own official template defaults to immediate effectiveness, meaning your agent can act right away unless you specify otherwise.

3. 3

   This document is signed and acknowledged before a notary public. Montana's official template uses no witnesses at all for this general document.

4. 4

   Montana separately allows a witnessed Declaration under the Rights of the Terminally Ill Act, naming a designee limited to decisions about withholding or withdrawing life-sustaining treatment (Montana Code Annotated Section 50-9-103).

5. 5

   Montana law does not disqualify any specific category of person, such as a relative or an employee of your care facility, from serving as one of the two witnesses to that Declaration.

6. 6

   You can revoke a Rights of the Terminally Ill Act Declaration at any time, regardless of your mental or physical condition, once you tell your physician or another health care provider.

7. 7

   Montana runs a voluntary Health Care Declaration Registry through the Attorney General, where you can file your Declaration so authorized providers can access it, though filing is not required.

8. 8

   This is a different document from Montana's Uniform Power of Attorney Act, which covers property and financial decisions and by its own terms does not apply to health care decisions.

Montana Requirements for Healthcare Power of Attorney

• Designation of Healthcare Agent (Montana Code Annotated Section 72-5-501)

  The principal designates a primary agent to make health care decisions, including that person's full name, address, and contact information, and states clearly that this is a health care power of attorney (Montana Code Annotated Section 72-5-501).

• Alternate Agent (Montana Code Annotated Section 72-5-501)

  Naming a successor agent who can act if the primary agent is unwilling, unable, or unavailable is standard practice and is included in the state's official template. Montana's coagent and successor-agent statute, Section 72-31-316, applies only to the Uniform Power of Attorney Act's financial powers and by its own terms does not govern a health care power of attorney.

• Agent Authority Scope (Montana Code Annotated Section 72-5-501)

  The agent may make decisions about medical treatment, surgical procedures, medication, and facility placement, except as the principal limits that authority in the document.

• HIPAA Authorization (45 CFR Section 164.508)

  Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the document is in effect.

• Effective Date and Durability (Montana Code Annotated Section 72-5-501)

  Montana lets the principal choose whether the document is effective immediately and continues through any later disability or incapacity, or becomes effective only upon disability or incapacity (Montana Code Annotated Section 72-5-501). It is not automatically springing on incapacity. Montana's own official template defaults to immediate effectiveness.

• End-of-Life Decisions (Montana Code Annotated Section 50-9-103)

  Under the Rights of the Terminally Ill Act, a principal may sign a Declaration addressing withholding or withdrawal of life-sustaining treatment, and may designate another individual to make those specific decisions if the principal has an incurable or irreversible condition (Montana Code Annotated Section 50-9-103).

• Organ Donation Authorization (Montana Uniform Anatomical Gift Act, Montana Code Annotated Section 72-17-214, Section 72-17-216)

  An agent who could have made an anatomical gift on the principal's behalf immediately before the principal's death has priority to make that gift after death (Montana Code Annotated Section 72-17-214). Separately, if a hospitalized prospective donor has a Declaration or advance health care directive, measures necessary to keep an organ medically suitable for transplant may not be withheld or withdrawn unless the Declaration expressly says otherwise (Section 72-17-216).

• Mental Health Treatment Decisions (Montana Code Annotated Section 53-21-1321)

  Electroconvulsive therapy, or surgical or experimental treatment, may be given to a principal who has been determined incapacitated only if a directive explicitly consents to that particular therapy or treatment (Montana Code Annotated Section 53-21-1321). Montana maintains a separate Mental Health Care Advance Directive scheme under Title 53, Chapter 21, Part 13, distinct from the general health care power of attorney, for people who want to authorize or limit mental health treatment specifically.

• Revocation Provisions (Montana Code Annotated Section 72-5-502)

  Montana Code Annotated Section 72-5-502 protects a good-faith agent or third party who relies on the document without actual knowledge of a revocation or of the principal's disability, but it does not itself state a competency requirement for the principal to revoke. Montana's own official template separately requires that the principal be competent to revoke and that revocation be by written notice delivered to anyone relying on the document. This differs from the Rights of the Terminally Ill Act Declaration, which can be revoked in any manner regardless of competency (Section 50-9-104).

• Notarization

  Montana's own official Durable Power of Attorney for Health Care template is executed solely by notary acknowledgment, with no witness signatures anywhere in the document. Montana's Mental Health Care Advance Directive, a separate document, does require notarization by statute (Section 53-21-1304).

• Agent Reimbursement (Montana Code Annotated Section 72-31-317)

  Montana's own official Durable Power of Attorney for Health Care template entitles the agent to reimbursement for reasonable expenses incurred on the principal's behalf. While the Uniform Power of Attorney Act (Section 72-31-317) provides for agent reimbursement, it does not apply to health care powers of attorney (Section 72-31-303 excludes them from its coverage).

• Recognition in Other States (Montana Code Annotated Section 50-9-111)

  A Declaration executed in a manner substantially similar to Montana Code Annotated Section 50-9-103, in compliance with another state's law, is effective for purposes of Montana's Rights of the Terminally Ill Act (Section 50-9-111).

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(a)(1)(Q))

  Facilities that participate in Medicare and Medicaid must ask patients about, and honor, their rights under state law to make advance directives, including a Montana Health Care Power of Attorney.

• Pregnancy Provisions (Montana Code Annotated Section 50-9-106)

  Life-sustaining treatment cannot be withheld or withdrawn from a patient known to be pregnant, so long as it is probable the fetus will develop to live birth with continued treatment (Montana Code Annotated Section 50-9-106(7)). This provision is part of the statute governing consent when no Declaration exists, so principals should confirm how it interacts with an agent's authority under an executed document.

• Guardian Nomination (Montana Code Annotated Section 72-5-501(2), Section 72-5-312)

  A principal may nominate, in a durable health care power of attorney, the guardian of the principal's person for the court's consideration if guardianship proceedings are later commenced, and the court must follow that nomination absent good cause or disqualification (Montana Code Annotated Section 72-5-501(2)).