Montana Living Will Requirements

The primary Montana statute governing living wills. It lets individuals of sound mind, 18 or older, direct that life-sustaining treatment be withheld or withdrawn if they have an incurable or irreversible condition expected to cause death within a relatively short time and can no longer decide for themselves. Montana's statutory form recognizes this single trigger condition only. It does not separately list a persistent vegetative state or permanent unconsciousness as an independent qualifying condition.

A declaration must be in writing, signed by the declarant or by another adult at the declarant's direction, and witnessed by two individuals. There is no witness qualification list in this section.

A declarant may revoke a declaration at any time and in any manner, without regard to mental or physical condition. The revocation only takes effect once it is communicated to the attending physician, attending advanced practice registered nurse, or another health care provider, by the declarant or by a witness to the revocation.

Life-sustaining treatment cannot be withheld or withdrawn under a declaration from an individual known to be pregnant, so long as it is probable the fetus will develop to the point of live birth with continued treatment.

A health care provider who complies in good faith with a valid declaration, and a designee who acts in good faith under one, are not subject to civil or criminal liability or unprofessional conduct discipline for that decision.

If a health care provider is unwilling to comply with the declaration, the provider must take all reasonable steps to transfer the declarant to another provider who will comply. If a facility's policies preclude compliance, the facility must take all reasonable steps to transfer the patient.

If a person has no effective declaration, Montana law lets a written consent witnessed by two individuals authorize withholding or withdrawing life-sustaining treatment, exercised in order of priority by a spouse, adult children, parents, adult siblings, or the nearest adult relative, or by a court-appointed full guardian. This authority is subject to the same pregnancy exception that applies to declarations.

Montana's Revised Uniform Anatomical Gift Act (Title 72, Chapter 17) lets you authorize organ and tissue donation, a provision that can be addressed alongside your declaration.

Federal law requires Medicare and Medicaid participating hospitals, nursing homes, and other facilities to inform patients in writing of their right under Montana law to make an advance directive, including a declaration stating their own treatment wishes.

Federal HIPAA regulations govern how a designee named in your declaration, or an agent named under a separate durable health care power of attorney, can be authorized to access your protected health information. This authorization supports the decision-maker function; it does not change or expand your own treatment-wishes instructions.

A declaration executed in a manner substantially similar to Montana's own declaration statute, and in compliance with the law of the state where it was executed, is effective in Montana.

Montana separately recognizes a Mental Health Care Advance Directive (Title 53, Chapter 21, Part 13), a distinct statute letting a person with capacity give advance authorization for mental health treatment decisions during a future period of incapacity, even over the person's own protest at the time. This is a separate legal instrument from the Rights of the Terminally Ill Act declaration covered on this page, not a section of it.

Montana law guarantees that treatment for comfort care and pain alleviation, including nutrition and hydration given for that purpose, continues regardless of a declaration. This is a guaranteed floor, not an election the declarant makes.

Montana's Rights of the Terminally Ill Act states plainly that it does not condone, authorize, or approve mercy killing or euthanasia. Separately, under Montana case law, the Montana Supreme Court held in Baxter v. Montana that physician aid in dying is not against Montana public policy, allowing a consent defense in a criminal case. A declaration under this Act does not itself request or authorize aid in dying. The two are legally distinct.

Federal Medicare and Medicaid conditions of participation require facilities to maintain written policies on advance directives and to provide patients written information about their rights under state law, including the right to execute a Montana declaration.

Montana's Uniform Electronic Transactions Act excludes only wills, codicils, and testamentary trusts from its scope, not health care declarations, so the general electronic-transactions law is not carved out for declarations the way it is for wills. Montana's own declaration statute, however, does not itself set out an electronic-signature or electronic-witness procedure for declarations the way some states' living-will statutes do.

Montana law separately defines a 'living will protocol,' a locally developed or statewide method by which emergency medical services personnel provide palliative care to, and withhold life-sustaining treatment from, a qualified patient in the field.