DURABLE POWER OF ATTORNEY FOR HEALTH CARE

State of Montana

[// GUIDANCE: This template complies with Montana requirements for health-care decision-making instruments, incorporates HIPAA authorization language, and is structured for immediate attorney customization.]

TABLE OF CONTENTS

I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block

I. DOCUMENT HEADER

1. Parties
   1.1 Principal: [PRINCIPAL LEGAL NAME], residing at [ADDRESS] (“Principal”).
   1.2 Agent: [PRIMARY AGENT LEGAL NAME], residing at [ADDRESS] (“Agent”).
   1.3 Successor Agent(s) (if any): [ALTERNATE AGENT 1] | [ALTERNATE AGENT 2].

2. Recitals
   A. Principal desires to designate an individual to make health-care decisions on the Principal’s behalf should the Principal become unable to make or communicate such decisions.
   B. Principal executes this Durable Power of Attorney for Health Care (“Instrument”) pursuant to all applicable Montana health-care decision statutes and other governing law.

3. Effective Date & Durability
   This Instrument is effective [immediately / upon determination of incapacity] and shall remain effective notwithstanding Principal’s subsequently incurred disability, incapacity, or incompetence.

4. Governing Law & Jurisdiction
   This Instrument shall be construed in accordance with the substantive laws governing health-care directives in the State of Montana (“Governing Law”).

II. DEFINITIONS

For purposes of this Instrument, capitalized terms have the meanings set forth below.

“Advance Directive” means any written statement of Principal’s wishes regarding medical treatment, including this Instrument and any attached or incorporated living will or end-of-life instructions.

“Agent” means the individual(s) appointed under Section III.1 to act for Principal in accordance with this Instrument.

“Good Faith” means honesty in fact and the observance of reasonable health-care standards prevailing in the community at the time of the decision or action.

“Health-Care Decision” includes consent, refusal to consent, or withdrawal of consent to any care, service, treatment, or procedure to maintain, diagnose, or otherwise affect Principal’s physical or mental condition.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, including 45 C.F.R. § 164.508.

“Incapacity” means the inability, as determined under applicable Governing Law, to understand and appreciate the nature and consequences of health-care decisions or to communicate such decisions.

“Principal” has the meaning assigned in Section I.1.1.

III. OPERATIVE PROVISIONS

1. Appointment of Agent
   Principal hereby appoints the Agent, with right of succession as listed in Section I.1, to make Health-Care Decisions for Principal in accordance with this Instrument and Governing Law.

2. Scope of Authority
   2.1 General Authority. Agent may make any and all Health-Care Decisions that Principal could make if able, including, without limitation:
   (a) Selection and discharge of health-care providers and facilities;
   (b) Approval or disapproval of diagnostic tests, surgical procedures, and medications;
   (c) Access to and disclosure of medical records consistent with Section III.4 (HIPAA Authorization);
   (d) Execution of waivers, consents, and releases of liability related to Health-Care Decisions.
   2.2 End-of-Life Decisions. Agent is expressly authorized to make decisions regarding life-sustaining treatment, artificial nutrition or hydration, and palliative care consistent with any written end-of-life instructions attached hereto as Exhibit A.
   2.3 Mental Health Treatment. [INCLUDE / OMIT] Agent’s authority to consent to or refuse mental health treatment, including administration of psychotropic medication and admission to mental health facilities.
   2.4 Autopsy, Anatomical Gifts, and Disposition of Remains. Agent is authorized to [CONSENT / REFUSE] to autopsy, decide anatomical gifts, and direct disposition of remains.

3. Conditions Precedent
   Agent’s authority takes effect upon: [check one]
   ☐ Execution of this Instrument (immediate)
   ☐ Certification of Incapacity by [one / two] licensed physician(s) [and/or psychologist].

4. HIPAA Authorization
   Pursuant to 45 C.F.R. § 164.508, Principal authorizes any covered entity to disclose to Agent any protected health information necessary to fulfill the purposes of this Instrument. This authorization is effective immediately and shall remain in effect until revoked in writing or the date ten (10) years after Principal’s death, whichever is earlier.

5. Restricted Powers
   Agent shall not:
   (a) Authorize psychosurgery, sterilization, or abortion absent clear written instructions from Principal;
   (b) Consent to experimental treatment unless (i) standard treatment is unavailable or (ii) Principal expressly authorizes such treatment in writing.

6. Termination
   This Instrument terminates upon the earliest of:
   (a) Principal’s revocation in accordance with Section IX.2;
   (b) Principal’s death (except as to post-death authority under Section III.2.4);
   (c) Judicial invalidation under Governing Law.

IV. REPRESENTATIONS & WARRANTIES

1. Principal represents and warrants that:
   (a) Principal is at least eighteen (18) years of age, of sound mind, and under no duress or undue influence;
   (b) This Instrument reflects Principal’s free and voluntary act;
   (c) No pending divorce, separation, or protective proceedings exist that would affect Agent’s authority (unless disclosed on Schedule 1).

2. Agent acknowledges and accepts appointment under this Instrument and represents that Agent:
   (a) Is at least eighteen (18) years of age;
   (b) Has read and understands the obligations herein;
   (c) Will act in Good Faith and in accordance with Principal’s known wishes and Governing Law.

[// GUIDANCE: Attach Schedule 1 if marital or guardianship status may impact Agent authority.]

V. COVENANTS & RESTRICTIONS

1. Duties of Agent
   (a) Act in accordance with Principal’s expressed wishes;
   (b) Act in Good Faith and in Principal’s best interests when wishes are unknown;
   (c) Maintain contemporaneous records of material Health-Care Decisions;
   (d) Consult reasonably available health-care professionals before making major decisions.

2. Successor Agent Protocol
   If the currently acting Agent resigns, dies, becomes incapacitated, or is unwilling to act, the next-named successor Agent shall automatically assume authority without further action.

3. Notice Obligations
   Agent shall notify:
   (a) Health-care providers of Agent’s authority upon assumption of duties;
   (b) Successor Agent(s) upon resignation;
   (c) Principal’s immediate family of major, non-routine decisions when feasible.

4. Restrictions on Assignment
   Agent’s authority is personal and may not be delegated except as expressly allowed by Governing Law.

VI. DEFAULT & REMEDIES

1. Events of Default
   (a) Agent’s breach of fiduciary duty or failure to act in Good Faith;
   (b) Judicial determination of Agent’s incapacity;
   (c) Agent’s conviction of a crime of moral turpitude involving health-care fraud or elder abuse.

2. Notice & Cure
   Any interested person under Governing Law may serve written notice of objection to Agent’s action or inaction. Agent shall have five (5) business days to cure or respond before further remedies are sought.

3. Remedies
   (a) Petition to the state probate court for suspension or removal of Agent;
   (b) Appointment of a guardian ad litem;
   (c) Injunctive relief to prevent or mandate a Health-Care Decision consistent with Principal’s wishes;
   (d) Recovery of reasonable attorney fees and costs by a prevailing party acting in Good Faith.

VII. RISK ALLOCATION

1. Indemnification of Agent
   Principal agrees to indemnify and hold Agent harmless from any loss, liability, or expense arising from actions taken in Good Faith pursuant to this Instrument (“Indemnified Claim”), except to the extent such loss results from Agent’s willful misconduct or gross negligence.

2. Limitation of Liability
   Agent shall not be liable for any Indemnified Claim in excess of the amount of personal assets actually distributed to Agent under Principal’s estate, if any, unless such liability arises from Agent’s willful misconduct or gross negligence.

3. Insurance
   [OPTIONAL] Agent may, at Principal’s expense, obtain liability insurance covering acts undertaken in Good Faith pursuant to this Instrument.

4. Force Majeure
   Agent shall not be deemed in default for failure to act when prevented by events beyond reasonable control, including natural disaster, war, governmental action, or epidemic.

VIII. DISPUTE RESOLUTION

1. Governing Law
   This Instrument and any dispute hereunder shall be governed by and construed in accordance with the laws of the State of Montana relating to health-care decisions.

2. Forum Selection
   Exclusive venue for any proceeding arising under this Instrument shall lie in the [COUNTY] District Court sitting in probate jurisdiction.

3. Arbitration
   Arbitration is expressly disclaimed and shall not apply to any dispute under this Instrument.

4. Jury Waiver
   No jury-waiver provision is included; statutory jury rights are preserved unless otherwise waived in a specific judicial proceeding.

5. Equitable Relief
   Nothing herein shall limit any party’s or interested person’s right to seek emergent injunctive or declaratory relief in the forum designated above to enforce or clarify Principal’s health-care wishes.

IX. GENERAL PROVISIONS

1. Amendment & Waiver
   Principal may amend this Instrument only by a written instrument executed with the same formalities as this Instrument. No waiver of any provision shall be effective unless in writing and signed by the waiving party.

2. Revocation
   Principal may revoke this Instrument at any time by (a) executing a subsequent written revocation, (b) executing a new durable power of attorney for health care, or (c) any act evidencing intent to revoke, as permitted by Governing Law.

3. Copies
   Photographic or electronic copies of this Instrument shall have the same force and effect as an original.

4. Severability
   If any provision is held invalid or unenforceable, the remainder of this Instrument shall remain in full force, and the invalid provision shall be modified to the minimum extent necessary to render it enforceable while preserving the parties’ intent.

5. Entire Instrument
   This Instrument, together with any Exhibits and Schedules, constitutes the entire understanding regarding the subject matter herein and supersedes all prior directives concerning health-care decision-making.

6. Successors & Assigns
   This Instrument is binding upon and shall inure to the benefit of Principal, Agent, and their respective heirs, personal representatives, and permitted assigns.

7. Counterparts & Electronic Signatures
   This Instrument may be executed in any number of counterparts, each deemed an original, and all of which constitute one and the same instrument. Signatures transmitted by electronic means shall be deemed original for all purposes permitted by Governing Law.

X. EXECUTION BLOCK

IN WITNESS WHEREOF, Principal has executed this Durable Power of Attorney for Health Care on [DATE].

A. Principal

[PRINCIPAL LEGAL NAME]
Principal

B. Acceptance by Agent

I, the undersigned Agent, accept the appointment and agree to act in Good Faith in accordance with this Instrument and Governing Law.

[PRIMARY AGENT LEGAL NAME]
Agent

C. Successor Agent(s) (Optional Acceptance)

[ALTERNATE AGENT 1]
Successor Agent

[ALTERNATE AGENT 2]
Successor Agent

D. Notarization / Witness Attestation (select one form consistent with MT law)

1. Notary Public Acknowledgment
   State of Montana )
   County of [COUNTY] ) ss.

On this ___ day of ____, 20__, before me, a Notary Public for the State of Montana, personally appeared [PRINCIPAL LEGAL NAME], known to me (or proved to me on the basis of satisfactory evidence) to be the individual whose name is subscribed to this Instrument and acknowledged that he/she executed the same for the purposes herein contained.

Notary Public for the State of Montana
My commission expires: ____

2. Two-Witness Statement
   We, the undersigned witnesses, affirm that [PRINCIPAL LEGAL NAME] voluntarily signed or acknowledged this Instrument in our presence and appears to be of sound mind and free from duress or undue influence.

_______ Date: _
[WITNESS #1 NAME], Address: ______

_______ Date: _
[WITNESS #2 NAME], Address: ______

EXHIBIT A – END-OF-LIFE INSTRUCTIONS
[Attach living will or specific directives regarding life-sustaining treatment, pain relief, and organ donation.]

SCHEDULE 1 – DISCLOSURE OF MARITAL OR GUARDIANSHIP STATUS (if applicable)

[// GUIDANCE:
1. Verify notarization vs. witness requirements under current Montana statutes before finalizing.
2. Confirm any mental-health-specific authority is permissible and, if so, include statutory language as needed.
3. Counsel should advise the Principal to provide signed copies to Agent(s), physician(s), and relevant medical facilities.]