Montana: Health Care Power of Attorney Requirements
The short answer
Montana's general durable health care power of attorney statute requires a written agent designation containing words that make the power survive incapacity or become effective upon incapacity. The governing part does not require witnesses or notarization.
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This is the general rule in Montana. Ezel applies current Montana law to your specific facts and answers with citations to the statutes.
| Governing law & document | Mont. Code Ann. §§ 72-5-501 and -502 govern the general health care power of attorney; the part has no statutory form. Montana's Uniform Power of Attorney Act expressly excludes powers to make health care decisions (§ 72-31-303(2)); Title 50, chapter 9 is a separate terminal-illness declaration statute. |
|---|---|
| Who can sign | The principal designates the agent in writing and includes statutory or similar durability/springing words (§ 72-5-501(1)). This two-section part states no special minimum age, capacity definition, signature clause, or directed-signer procedure for the general health care power. |
| Witnesses or notary | None prescribed for the general health care power in §§ 72-5-501 to -502. Do not import the financial UPOAA's execution rule: § 72-31-303(2) excludes a power to make health care decisions. |
| Who can't witness or serve | No witnesses are statutorily required, and §§ 72-5-501 to -502 list no witness or agent disqualifications. If a guardian is later appointed, the agent is accountable to the guardian, who may revoke or amend the health care power (§ 72-5-501(2)). |
| When the agent can act | The writing controls. It may say the power is not affected by later disability/incapacity (continuing authority) or that it becomes effective upon disability/incapacity (springing authority), or use similar words (§ 72-5-501(1)). The part does not prescribe who determines incapacity. |
| Agent's powers & limits | The document defines the authority; Part 5 supplies no default list of medical powers or categorical exclusions. Montana hospitals must recognize the intent of a legally valid health care power concerning treatment, and a medical-POA agent ranks ahead of family/default proxies (§§ 50-5-110(1)(g), 50-5-1311). |
| How to revoke | Part 5 refers to express revocation but prescribes no form. Revocation or termination is ineffective as to an agent or other person who acts in good faith without actual knowledge; a later-appointed guardian has the principal's power to revoke or amend (§§ 72-5-501(2), -502). No spouse-divorce rule appears in this health-care-POA part. |
| Out-of-state directives | Sections 72-5-501 to -502 contain no reciprocity rule for a general health care power. Section 50-9-111 recognizes an out-of-state declaration only for the separate Rights of the Terminally Ill Act, so it should not be treated as general health-care-POA portability. |
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Montana's general durable health care power of attorney is unusually
lightly codified. The governing part contains only Mont. Code Ann.
§§ 72-5-501 and 72-5-502. It requires a written agent designation with words
showing that authority survives incapacity or begins upon incapacity, but it does
not publish a form or add a witness or notary formality.
This is distinct from the Rights of the Terminally Ill Act in Title 50, chapter
9, which governs a narrower declaration about life-sustaining treatment. It is
also distinct from Montana's financial Uniform Power of Attorney Act, which
expressly excludes powers to make health care decisions (§ 72-31-303(2)).
Requirements one by one
Governing law and document
Section 72-5-501 defines a durable health care power as a writing in which the
principal designates an attorney-in-fact or agent and uses durability or
springing language. Part 5 provides no statutory form. Montana hospitals must
recognize the intent of a legally valid health care power concerning treatment
(§ 50-5-110(1)(g)).
Who can sign
The statute describes the principal as making the written designation
(§ 72-5-501(1)). This two-section part does not state a special minimum age,
define the principal's capacity threshold, separately prescribe a signature, or
authorize a directed signer. Those matters should not be filled in from the
financial POA act, because that act excludes health-care-decision powers
(§ 72-31-303(2)).
Witnesses or notary
Neither § 72-5-501 nor § 72-5-502 requires a witness or notarization for the
general health care power. The express statutory requirement is the written
designation plus words showing the intended effect of later disability or
incapacity.
The witness rules for a Title 50 terminal-illness declaration answer a different
question. Likewise, the financial UPOAA's execution and acknowledgment rules do
not govern a power to make health care decisions (§ 72-31-303(2)).
Who cannot witness or serve
Because the general statute does not require witnesses, it has no witness-
qualification list. Sections 72-5-501 and -502 also state no occupation,
relationship, facility, or provider bar on the selected agent.
If a guardian is later appointed, the agent becomes accountable to the guardian.
The guardian has the same power the principal would have had to revoke or amend
the health care power (§ 72-5-501(2)).
When the agent can act
The wording chosen controls. A writing may say the power is not affected by
later disability or incapacity, making existing authority durable. Or it may say
the power becomes effective upon disability or incapacity, making it
springing. Similar words showing the same intent work (§ 72-5-501(1)). Part 5
does not identify a clinician or other person who must determine incapacity.
Powers and limits
Part 5 does not supply a default list of medical powers or categorical treatment
limits; the written grant defines the authority. Section 50-5-110(1)(g)
recognizes a health care power "concerning treatment," and the current proxy
hierarchy places an agent appointed in a medical durable power of attorney ahead
of family and default proxies (§ 50-5-1311).
Montana separately regulates terminal-care declarations and mental-health
advance directives. Their specialized powers and formalities should not be
mistaken for defaults governing every general health care power.
How to revoke
Section 72-5-502 refers to express revocation but does not prescribe a signed,
oral, destruction, or delivery method. As to an agent or another person who acts
in good faith, revocation or termination is not effective until that person has
actual knowledge (§ 72-5-502(1)-(2)). A later guardian may revoke or amend under
§ 72-5-501(2).
No automatic divorce or separation rule for a spouse-agent appears in this
health-care-POA part. The financial UPOAA's spouse-agent rule cannot be imported
because health care powers are excluded from that act (§ 72-31-303(2)).
Out-of-state directives
The general health-care-POA part has no express reciprocity section. Montana does
recognize an out-of-state terminal-illness declaration that is substantially
similar to § 50-9-103 and valid where executed, but that rule is effective only
"for purposes of" the Rights of the Terminally Ill Act (§ 50-9-111). It is not a
general portability rule for every health care power.
What trips people up
- The financial POA formalities do not carry over. Section 72-31-303(2)
expressly excludes a power to make health care decisions. - The durability words matter. The writing must show that authority survives
incapacity or becomes effective upon incapacity (§ 72-5-501(1)). - A terminal-illness declaration is not the same instrument. Title 50,
chapter 9 has its own rules and only addresses the declaration within that act.
Common questions
Do I need two witnesses or a notary?
Not under the general health-care-POA provisions in §§ 72-5-501 and -502. The
financial UPOAA is expressly inapplicable (§ 72-31-303(2)).
Does the agent act immediately?
It depends on the writing. Montana expressly recognizes both continuing and
springing durability language (§ 72-5-501(1)).
Does Montana provide a statutory health care POA form?
No form appears in the governing two-section Part 5. The financial statutory form
does not authorize health-care decisions.
Will an out-of-state health care POA work?
The general Part 5 does not answer that question expressly. Section 50-9-111's
reciprocity rule is limited to the separate terminal-illness declaration.
Statutes and sources
- Mont. Code Ann. § 72-5-501 — written designation, durability language, and
later guardian.
https://leg.mt.gov/bills/mca/title_0720/chapter_0050/part_0050/section_0010/0720-0050-0050-0010.html
(accessed 2026-07-16) - Mont. Code Ann. § 72-5-502 — actual-knowledge protection and termination
terms.
https://leg.mt.gov/bills/mca/title_0720/chapter_0050/part_0050/section_0020/0720-0050-0050-0020.html
(accessed 2026-07-16) - Mont. Code Ann. § 72-31-303 — financial UPOAA excludes health-care powers.
https://leg.mt.gov/bills/mca/title_0720/chapter_0310/part_0030/section_0030/0720-0310-0030-0030.html
(accessed 2026-07-16) - Mont. Code Ann. §§ 50-5-110 and 50-5-1311 — hospital recognition and
decisionmaker priority.
https://leg.mt.gov/bills/mca/title_0500/chapter_0050/part_0010/section_0100/0500-0050-0010-0100.html and
https://leg.mt.gov/bills/mca/title_0500/chapter_0050/part_0130/section_0110/0500-0050-0130-0110.html
(accessed 2026-07-16) - Mont. Code Ann. § 50-9-111 — limited reciprocity for terminal-illness
declarations.
https://leg.mt.gov/bills/mca/title_0500/chapter_0090/part_0010/section_0110/0500-0090-0010-0110.html
(accessed 2026-07-16)
Source links
Every statute quoted above, linked, with the date we checked it.
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