Montana Temporary Guardianship Agreement

Introduction

Key Things to Know

1. 1

   The main Montana instrument is a power of attorney delegating parental powers under MCA 72-5-103. The parent or guardian signs it and the person named accepts the role. No statewide official form for it is published in the statute. Separately, a caretaker relative signs the Medical Authorization Affidavit (MCA 40-6-502) and the Educational Authorization Affidavit (MCA 20-5-503), each in a statutory form.

2. 2

   A delegation under MCA 72-5-103 may not exceed 6 months. The limit does not apply to a member of the Montana national guard serving more than 180 continuous days on duty, active-duty US military, or a federal reserve member serving more than 180 continuous days under Title 10. The statute does not state a renewal mechanism. A medical affidavit lasts for the earlier of 6 months, revocation by the relative, or the child no longer living with the relative. An educational affidavit lasts until the end of the first school year after delivery to the school district, or until revoked or the child no longer lives with the relative.

3. 3

   MCA 72-5-103 requires a 'properly executed' power of attorney but does not define that phrase here, so check the execution steps that apply to you before relying on the document. Each affidavit is effective only if signed by the caretaker relative, under oath, before a notary public. The parent does not sign an affidavit. A clear photographic copy suffices where an original is required. The relative must give written notice to everyone who received an affidavit if the child leaves or the affidavit is revoked.

4. 4

   The power of attorney can delegate any powers regarding care, custody, or property of the minor child, except the power to consent to marriage or adoption. The medical affidavit lets the relative consent to medical care, and the educational affidavit lets the relative enroll the child in school, discuss educational progress with educators, and consent to educational services. Neither affidavit changes who has custody, and neither gives consent to marriage or adoption or a right to notice of a medical procedure the relative did not consent to. Enrollment is not allowed if the child's residence is primarily to attend a particular school or take part in athletics there.

5. 5

   Under the affidavits, a health care provider or school official who acts in good faith and has no actual knowledge of facts contrary to the affidavit is not subject to civil liability, criminal prosecution or professional discipline. The educational affidavit's protection covers any public or private entity or individual acting that way. The statute states no such protection for the power of attorney, and this page does not promise that any school or provider must accept either document.

6. 6

   This is not a court guardianship and it does not transfer custody or end a parent's rights. Under the medical affidavit, a parent's communicated conflicting decision overrides the relative's decision, unless the parent's decision endangers the child's life. A relative may revoke an affidavit. The statute does not set out how the power of attorney is revoked. The person named under the power of attorney is 'another person' with no relative rule stated. Only a caretaker relative (related by blood, marriage, or adoption, and not a parent, foster parent, stepparent, or legal guardian) may sign an affidavit.

7. 7

   If this document does not fit your situation, or a longer or court-backed arrangement is needed, a Montana court may appoint a temporary guardian of a minor under MCA 72-5-224, whose authority shall not last longer than 6 months. A regular guardian of an unmarried minor under MCA 72-5-222 requires that parental rights have been terminated, suspended or limited. A guardianship over a parent's objection is a contested case. DocDraft's guardianship-of-a-minor-petition page covers the court petition. For abuse or danger to a child, contact the Montana child protective agency. For disputes between parents, see DocDraft's child-custody-agreement and parenting-plan pages.

Montana Requirements for Temporary Guardianship Agreement

• Parent-Signed Power of Attorney

  A parent or guardian of a minor may, by a properly executed power of attorney, delegate to another person any powers regarding care, custody, or property of the minor child (MCA 72-5-103(1)).

• 6-Month Term Cap

  A delegation may not exceed 6 months. The limit does not apply to Montana national guard members serving more than 180 continuous days on duty, active-duty US military, or federal reserve members serving more than 180 continuous days under Title 10 (MCA 72-5-103(1),(2)).

• Marriage and Adoption Exclusion

  The power to consent to marriage or adoption of a minor ward cannot be delegated, and the caretaker affidavits likewise give no such consent and no legal custody (MCA 72-5-103; 40-6-501(3)).

• Notarized Caretaker Relative Affidavits

  The medical and educational affidavits are effective only if signed by the caretaker relative, under oath, before a notary public (MCA 40-6-502(2); 20-5-503(2)).

• Statutory Affidavit Form

  Each affidavit is invalid unless written in substantially the statutory form with its warning paragraph (MCA 40-6-502(9); 20-5-503(9)).

• Affidavit Duration and Revocation

  A medical affidavit lasts for the earlier of 6 months, revocation by the relative, or the child no longer living with the relative. The relative must give written notice to everyone who received an affidavit when the child leaves or it is revoked (MCA 40-6-502(6),(7); 20-5-503(6),(7)).

• Reliance Protection

  A provider or school official acting in good faith with no actual knowledge of contrary facts is not subject to civil liability, criminal prosecution or professional discipline under the affidavits (MCA 40-6-502(4)(a); 20-5-503(4)(a)).

• Caretaker Relative Eligibility

  An affidavit may be signed only by an individual related by blood, marriage, or adoption who is not a parent, foster parent, stepparent, or legal guardian (MCA 40-6-501(4)(a)).

• Parental Decision Prevails

  A parent's communicated conflicting medical decision supersedes the relative's decision unless it endangers the child's life (MCA 40-6-502(3)).