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Montana Guardianship Planning
Support GuideMontana23 min read

Montana Guardianship Planning

How Montana guardianship and conservatorship work under MCA Title 72, chapter 5, the filing fee, and the documents that can prevent a case.

By Settled Editorial

Montana splits the job of deciding for someone who can no longer decide alone into two court roles. A guardian handles the person. A conservator handles the money. Montana law lets you name your own choice for both ahead of time in a power of attorney, and under MCA 72-31-308(1) the court follows your most recent nomination unless it finds good cause or a disqualification.

Two limits shape every Montana case. The statute allows guardianship only as far as the person's actual limitations require it (MCA 72-5-306), and since 2021 the court may appoint a guardian only after finding that a less restrictive alternative cannot meet the person's needs (MCA 72-5-316(1)).

One boundary sets the scope of this page. Guardianship and conservatorship deal with a living person. They are not probate. When someone dies, a separate case opens for the estate, and the Montana probate guide covers that side.

Both kinds of case go to the Montana district court, filed with the clerk of district court in the right county. Montana has no separate probate court. Find your county's clerk through the Montana courts directory.

Read this page as a planning map, not a filing kit. It gives general information about Montana law, not advice about your family. A guardianship case takes rights away from an adult, so ask a licensed Montana attorney to look at any plan or petition before you rely on it.

Guardian and Conservator Are Two Different Jobs

Montana defines both roles at the front of chapter 5 of Title 72, the part of its Uniform Probate Code that covers people under a disability.

  • A guardian makes decisions about the person: where they live, what care they receive, and who looks after their daily needs. The person a guardian serves is the ward (MCA 72-5-101(5)).
  • A conservator manages money and property in a protective proceeding under part 4. The person a conservator serves is the protected person (MCA 72-5-101(2)).

The statute measures incapacity by what the person can do. MCA 72-5-101(1) describes an incapacitated person as someone impaired by mental illness, mental deficiency, physical illness or disability, chronic drug use, chronic intoxication or another cause, to the point that they cannot make or communicate responsible decisions about themselves.

The money side has its own test. Under MCA 72-5-409(2), the court may appoint a conservator when a person cannot manage property and affairs effectively, for reasons that include advanced age, illness, confinement or disappearance, and the property will be wasted without management or money is needed for the person's support.

Here is why the split matters. If a person could handle their own health and safety once someone else managed their money, MCA 72-5-316(1) tells the court to treat the guardianship petition as a petition for a protective order under part 4. A family that files for guardianship when the real problem is the checkbook may end up with a conservatorship instead.

Montana Keeps Every Guardianship as Narrow as Possible

MCA 72-5-306 states the purpose in three rules:

  1. Guardianship may be used only as far as necessary to protect the person's well-being.
  2. It must encourage the most self-reliance and independence the person can manage, and it may be ordered only to the extent the person's actual mental and physical limitations require it.
  3. A person under guardianship is not presumed incompetent and keeps every legal and civil right the court has not expressly limited or handed to the guardian.

Montana offers two kinds of guardian for an incapacitated adult. A full guardian holds every power listed in MCA 72-5-321. A limited guardian holds fewer powers, and only the ones the court names (MCA 72-5-305(4)). Under MCA 72-5-316(2), the court may not give a guardian powers beyond those the petition asks for, and it may create a limited guardianship or a conservatorship even when the petition asked for a full guardianship. The order must say which kind it creates and must state that the person keeps every right it does not limit by name (MCA 72-5-316(3)).

The 2021 Legislature tightened this further. Chapter 40, Laws of 2021 (SB 31) defined a less restrictive alternative as any approach that restricts fewer of the person's rights than a guardianship would, and named three: supported decisionmaking, appropriate technological assistance, and a representative payee (MCA 72-5-305(3)). Every petition must now describe the alternatives already tried, or say why none were, and explain why they fall short (MCA 72-5-319(1)(i)).

Naming Your Own Guardian and Conservator Ahead of Time

Montana has no standalone nomination form in its guardianship statutes. The nomination rides inside a power of attorney.

  • Financial power of attorney. Under MCA 72-31-308(1), a principal may nominate a conservator or guardian of the estate, or a guardian of the person, in a power of attorney. Except for good cause or disqualification, the court appoints in line with the principal's most recent nomination. The statutory form power of attorney in MCA 72-31-353 carries an optional section for exactly this.
  • Durable health care power of attorney. Under MCA 72-5-501(2), a durable health care power of attorney can nominate the guardian of your person, and the court appoints in line with your most recent nomination in that document except for good cause or disqualification.

Without a document, the court works down a priority list. Under MCA 72-5-312(2), people who are not disqualified rank in this order for guardian of an incapacitated person:

  1. A person, association or private nonprofit corporation the incapacitated person nominated, if the court expressly finds the person had the capacity to make a reasonably intelligent choice when nominating
  2. The spouse
  3. An adult child
  4. A parent, including someone a deceased parent nominated by will or other signed writing
  5. Any relative the person lived with for more than 6 months before the petition was filed
  6. A relative or friend who has shown a sincere, longstanding interest in the person's welfare
  7. A private association or nonprofit corporation with a guardianship program, or a member or listed volunteer it approves
  8. A person nominated by whoever is caring for the person or paying them benefits

That list does not bind the court. MCA 72-5-312(3) says the priorities "are not binding" and tells the court to select whoever is best qualified and willing to serve. Subsection (4) disqualifies anyone who gives the person, or is likely to give during the guardianship, what the statute calls "substantial services" in a professional or business capacity, anyone who is or may become the person's creditor, anyone whose interests may conflict with the person's, and their employees. Under subsection (5), if no qualified person can serve, the court may appoint a state or federal agency despite those limits.

Conservators have a separate ladder in MCA 72-5-410(1). It starts with a fiduciary already appointed where the person lives, then a nominee of a protected person aged 14 or older with enough capacity to choose, then the spouse, adult child, parent, and a relative the person lived with for more than 6 months. It ends with a conservator corporation and, last, the public administrator. For good cause, the court may pass over someone with priority (MCA 72-5-410(3)).

One more route belongs to families. The parent of an unmarried incapacitated adult, or the spouse of a married one, may appoint a guardian by will or by a signed writing attested by at least two witnesses (MCA 72-5-302). The appointee gives 7 days' written notice and then files an acceptance. A spouse's appointment outranks a parent's, and the incapacitated person can end it by filing a written objection (MCA 72-5-304).

The Documents That Keep a Case From Starting

Montana courts may appoint a guardian only when a less restrictive alternative cannot meet the person's needs, so the documents signed in advance carry real weight.

  • A durable financial power of attorney. Under MCA 72-31-304, a Montana power of attorney is durable unless it says incapacity ends it. The principal signs it, or someone signs in the principal's conscious presence at their direction. A notary is not required, though a notarized signature is presumed genuine (MCA 72-31-305). If a court later appoints a conservator, the agent's authority continues unless the court limits it (MCA 72-31-308(2)). Read more about a POA instead of a conservatorship.
  • A durable health care power of attorney and a living will. A health care power of attorney must contain words showing it survives your disability or incapacity (MCA 72-5-501(1)). A living will declaration under the Montana Rights of the Terminally Ill Act is signed and witnessed by two individuals (MCA 50-9-103). See an advance directive for both.
  • Supported decisionmaking. The person picks one or more people to help them understand personal and financial decisions and to communicate the decision they make (MCA 72-5-305(5)). Title 72 sets no form or signing rule for it. The Montana Judicial Branch forms page links a Supported Decision-Making Agreement form.
  • A representative payee. A payee appointed by the benefit agency manages government benefits, such as Social Security, without a court case. MCA 72-5-305(3) lists it as a less restrictive alternative.
  • A single protective arrangement. Under MCA 72-5-422, the court can approve one transaction, such as a sale, a trust or a life-care contract, without appointing a general conservator.

Each of these covers a different piece of what a court order would otherwise control. Which ones fit a given family, and in what mix, is a question for a Montana attorney. For how they fit with a will and a trust, see the rest of a Montana plan.

How a Montana Adult Guardianship Case Runs

Let's break it down. The steps below come from part 3 of chapter 5.

  1. Petition. The person, or anyone interested in their welfare, including the county attorney, may petition (MCA 72-5-315(1)). MCA 72-5-319 lists what the petition must contain: names and addresses, the nature and degree of the incapacity, any property involved, the proposed guardian, the closest relatives, the less restrictive alternatives tried, whether a full or limited guardianship is requested, and the specific powers sought.
  2. Venue. File where the person resides or is present. If a court ordered the person admitted to a facility, the county where that court sits also works (MCA 72-5-311).
  3. Hearing and counsel. On filing, the court sets a hearing on incapacity. The person may hire a lawyer, or the court may appoint an appropriate official or order the Office of State Public Defender to assign counsel (MCA 72-5-315(2)).
  4. Physician and visitor. A physician the court appoints examines the person and files a written report. A court visitor interviews the person, the petitioner and the proposed guardian, visits the current home and the proposed residence, and files a written report (MCA 72-5-315(3)). The visitor must have training in law, nursing, social work, medical care, mental health care, pastoral care, education or rehabilitation, and no personal interest in the case (MCA 72-5-313).
  5. Notice. Notice goes to the person, their spouse, parents and adult children, and anyone serving as guardian, conservator or caregiver (MCA 72-5-314(1)). The person, spouse and parents must be served personally if they can be found in Montana. Most others get notice at least 14 days before the hearing by mail or personal delivery (MCA 72-1-301(1)).
  6. The hearing. The person may attend, see or hear all the evidence, present evidence, cross-examine the physician and the visitor, and ask for a jury. The hearing can be closed and heard without a jury if the person or their lawyer asks (MCA 72-5-315(4)).
  7. Findings and order. The court may appoint a guardian if it is satisfied the person is incapacitated, the needs cannot be met by a less restrictive alternative, and court intervention is needed for the person's physical health or safety. It must make specific findings of fact (MCA 72-5-316(1)).

The statute names no standard of proof for the incapacity finding. It says the court may appoint "if the court is satisfied." Montana sets no deadline for the hearing either, so timing depends on the district court's calendar and on how fast the reports come in. The Montana guardianship and conservatorship page covers the court case itself.

Temporary Guardians for an Emergency

When something cannot wait, MCA 72-5-317 offers two tools.

  • If the person has no guardian and an emergency exists, the court itself may exercise a guardian's power until notice and a hearing can happen (MCA 72-5-317(1)).
  • If an appointed guardian is not doing the job, or there is no guardian and the person's welfare requires immediate action, the court may appoint a full or limited temporary guardian, with or without notice, for a specified period of no more than 6 months (MCA 72-5-317(2)). The court may give a temporary guardian only the powers the situation requires.

A petition can ask for a temporary guardian alongside the permanent one, stating the facts that make it necessary (MCA 72-5-319(2)). The money side has a matching rule: while a conservatorship petition is pending, the court may appoint a temporary conservator for up to 6 months (MCA 72-5-421(1)).

What a Guardian and a Conservator Must Do

A full guardian holds the same powers over the ward that a parent has over an unemancipated minor child (MCA 72-5-321(2)). That includes custody, choosing where the ward lives inside or outside Montana, arranging care and education, and consenting to medical treatment. Three limits stand out:

  • A guardian may not consent to withholding or withdrawing life-sustaining treatment, or to a do not resuscitate order, without authority under Title 50 or a court order (MCA 72-5-321(2)(c)).
  • A guardian may not involuntarily commit the ward for mental health treatment outside the Title 53 commitment procedures or the 72-5-322 petition (MCA 72-5-321(5)).
  • A full guardian reports every year on the ward's condition and any estate in the guardian's control, unless the court waives it. If the clerk finds a report missing, the court orders the guardian to file it and show good cause for the delay (MCA 72-5-321(2)(e), (3)).

A conservator acts as a fiduciary under the standards of care that apply to trustees (MCA 72-5-423). The conservator files a complete inventory under oath within 90 days after appointment (MCA 72-5-424(1)) and accounts to the court at least once a year unless the court directs otherwise (MCA 72-5-438(1)). The court may also require a bond, which by default equals the value of the property in the conservator's control plus one year's estimated income (MCA 72-5-411(2)).

The Montana Judicial Branch publishes a guardian care plan form, an inventory form, two annual accounting forms (one for small estates) and an annual report form.

Naming a Guardian for a Minor Child

For a child, the plan usually starts with a will.

  • By will. A parent may appoint a guardian of an unmarried minor by will. The appointment takes effect when the guardian files an acceptance in the court where the will is probated, if both parents have died or the surviving parent has been adjudged incapacitated. If both parents have died, the appointment by the parent who died later has priority (MCA 72-5-211(1)).
  • The child's say. A minor aged 14 or older can block or end a testamentary appointment by filing a written objection before acceptance or within 30 days after notice of acceptance (MCA 72-5-213).
  • By the court. The court may appoint a guardian for an unmarried minor when all parental rights of custody have been terminated, or suspended or limited by circumstances or a prior court order (MCA 72-5-222(1)). A will-appointed guardian has priority, but the court may go ahead if that person does not accept within 30 days after notice of the proceeding (MCA 72-5-222(2)). The court must appoint the person a minor aged 14 or older nominates unless that is against the child's best interests (MCA 72-5-223).
  • Short of guardianship. A parent may hand powers over a child's care, custody or property to another person by power of attorney for up to 6 months, with longer periods allowed for certain deployed service members (MCA 72-5-103).

The Montana Judicial Branch posts a Guardianship of a Minor Packet, forms GM-100 through GM-900, with instructions, a petition, a consent form and a proposed order. It lists no matching statewide petition packet for an adult guardianship.

What It Costs to Open a Case

The Montana Clerks of District Courts civil fee schedule lists $100 to file a guardianship petition and $100 to file a conservatorship petition. That $100 adds up three charges:

PieceAmountSource
Clerk's fee for a guardian or conservator petition$70MCA 25-1-201(1)(m)
Civil filing fee$20MCA 25-1-202
Court technology surcharge$10MCA 3-1-317
Total at the counter$100Clerks' fee schedule

A person who cannot pay may ask to proceed without prepaying fees by filing an affidavit, backed by a financial statement, under MCA 25-10-404. Any visitor, lawyer, physician or conservator appointed in a protective proceeding who is not otherwise paid is entitled to reasonable compensation from the person's estate (MCA 72-5-432).

Ending or Changing a Guardianship

A Montana guardianship can be undone. Under MCA 72-5-325, the ward or anyone interested in the ward's welfare may petition to remove a guardian, and the guardian may petition to resign. The ward or an interested person may also ask the court to find that the ward is no longer incapacitated. The ward can make that request informally, and anyone who knowingly blocks it can be held in contempt. The original order may bar a new petition for up to 6 months without special leave. Before ending a guardianship or naming a successor, the court follows the same safeguards it used for the appointment.

If the person moves, part 6 of chapter 5, Montana's version of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, lets a guardianship or conservatorship move to another state, or come into Montana, by petition (MCA 72-5-624 and 72-5-625).

Planning Ahead Compared With a Court Case

Signed in advanceCourt guardianship or conservatorship
When it is set upWhile you still have capacityAfter capacity is lost, by petition
Who actsThe agent or supporter you choseThe person the court appoints
Source of authorityYour signed documentA Montana district court order
Who picks the personYou, and 72-31-308(1) points the court to your most recent nominationThe court, guided by the 72-5-312 list
What starts itYour own signatureA petition, a physician's report, a visitor's report and a hearing
Cost to beginNo filing fee$100 to file with the clerk of district court
Ongoing court filingsNoneAnnual report or accounting unless waived
Who can undo itYou, at any time while you have capacityThe court, on petition under 72-5-325

Frequently Asked Questions

What is the difference between a guardian and a conservator in Montana?

A guardian makes decisions about the person, such as where they live and what medical care they receive. A conservator manages money and property in a protective proceeding under part 4 of MCA Title 72, chapter 5. Under Montana Code Annotated 72-5-101, the person under a guardianship is the ward, and the person whose estate a conservator manages is the protected person. If a person could meet their own health and safety needs once someone else managed their money, 72-5-316(1) tells the court to treat a guardianship petition as a petition for a protective order.

Can I choose my own guardian in Montana before I lose capacity?

Yes. Under MCA 72-31-308(1), a financial power of attorney can nominate a conservator or guardian, and the court appoints in line with your most recent nomination except for good cause or disqualification. A durable health care power of attorney can nominate a guardian of the person on the same terms under 72-5-501(2). Your own nominee also sits first in the 72-5-312 priority list if the court finds you could make a reasonably intelligent choice when you made it.

Does Montana prefer a limited guardianship?

Montana limits every guardianship to what the person needs. MCA 72-5-306 says a guardianship may be ordered only to the extent the person's actual mental and physical limitations require it, and the ward keeps every legal and civil right the order does not expressly limit. Under 72-5-316(2) the court may create a limited guardianship or a conservatorship even when the petition asks for a full guardianship.

How long can a temporary guardianship last in Montana?

No more than 6 months. MCA 72-5-317(2) lets the court appoint a full or limited temporary guardian, with or without notice, for a specified period not to exceed 6 months when the person's welfare requires immediate action. A temporary guardian of a minor also serves no more than 6 months under 72-5-224, and a temporary conservator no more than 6 months under 72-5-421(1).

What does it cost to file a guardianship petition in Montana?

$100. The Montana Clerks of District Courts civil fee schedule lists $100 to file a guardianship petition and $100 to file a conservatorship petition. That total is the $70 fee in MCA 25-1-201(1)(m), the $20 civil filing fee in 25-1-202 and a $10 technology surcharge under 3-1-317. A person who cannot pay may ask the court to waive fees under 25-10-404.

Can a Montana guardianship be ended?

Yes. Under MCA 72-5-325(2), the ward or anyone interested in the ward's welfare may petition for an order that the ward is no longer incapacitated, and the ward may also ask the court informally. The original order may bar a new petition for up to 6 months without special leave. Before ending the guardianship, the court follows the same safeguards it used to appoint the guardian.

Sources:

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Information current as of September 27, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Montana can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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