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Montana Advance Directive
Support GuideMontana12 min read

Montana Advance Directive

A Montana advance directive is a living will signed before two witnesses, a durable health care power of attorney, or both.

By Settled Editorial

A Montana advance directive is usually two documents. The first is a declaration, Montana's name for a living will, made under the Montana Rights of the Terminally Ill Act at MCA 50-9-103. You must be 18 or older and of sound mind, sign it, and have two individuals witness it. The section names no notary. The second is a durable health care power of attorney under MCA 72-5-501, which needs a writing that names your agent and carries durability words.

Read this page as a plain map of Montana Code Annotated 2025, then have a Montana attorney draft or review what you sign. It is not legal advice.

Montana Uses Two Separate Documents

Montana has not adopted the Uniform Health Care Decisions Act that states like Utah now use. It still runs on two older pieces of law that sit in different titles of the code.

DocumentWhat it doesHow you sign itStatute
Declaration (living will)Tells your doctor to withhold or withdraw treatment that only prolongs dying, and may name a designeeYour signature, or another's at your direction, plus two witnesses50-9-103
Durable health care power of attorneyNames an agent to make health care decisions for youA writing that names the agent and contains durability words72-5-501
POLSTA medical order for CPR, other interventions and tube feedingSigned by you or your legal decision maker and a Montana physician, APRN or PADPHHS form, no statute

The first two are planning documents you sign while you are well. The POLST comes later, usually with serious illness, because a clinician has to sign it.

One document can carry more than one job. A single declaration may give instructions and name a designee (50-9-103(1), (3)). And under 50-9-103(4), a health care power of attorney that contains written authorization to decide about withholding or withdrawing life-sustaining treatment counts as a declaration that designates another person.

Signing a Montana Living Will

Section 50-9-103(1) sets four rules for a declaration:

  1. You must be an individual of sound mind and 18 years of age or older.
  2. You sign it yourself, or someone else signs it at your direction.
  3. Two individuals witness it.
  4. Any designee you name must also be of sound mind and 18 or older.

That is the complete list. The section names no notary, and it sets no qualifications for the witnesses. It does not bar a relative, an heir, your designee or your doctor from witnessing. Some online summaries borrow witness restrictions from other states. Montana's statute does not contain them.

Montana prints two optional forms right in the statute. The form in 50-9-103(2) directs your attending physician or attending advanced practice registered nurse to withhold or withdraw treatment that only prolongs the process of dying and is not needed for your comfort or to ease pain. The form in 50-9-103(3) names a designee and an alternate, and falls back to the same direction if neither is available or willing. Each form "may but need not" be used. Both end with a witness statement: "The declarant voluntarily signed this document in my presence."

Once you hand a copy to a health care provider, 50-9-103(5) requires the provider to put it in your medical record. A provider who will not follow it must tell you and your designee promptly. Providers may presume a declaration is valid unless they have actual notice otherwise (50-9-103(1), 50-9-107).

The Durable Health Care Power of Attorney

A health care power of attorney in Montana lives in Title 72, next to the guardianship statutes. Section 72-5-501(1) defines it as a power of attorney that designates your attorney-in-fact or agent in writing, where the writing contains words like one of these:

  • "This health care power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time", which keeps the power working after a later disability.
  • "This health care power of attorney becomes effective upon the disability or incapacity of the principal", which holds the power back until you become disabled or incapacitated.

Similar words showing the same intent also work. Unless the writing sets an end date, the authority continues regardless of how much time passes.

Here is the part most Montana summaries get wrong. Sections 72-5-501 and 72-5-502 name no witness requirement and no notary requirement. The execution rules in Montana's Uniform Power of Attorney Act do not reach this document either, because MCA 72-31-303(2) excludes "a power to make health care decisions" from that act. Those rules govern the financial power of attorney, a separate document.

Two practical points follow:

  • Put life support in writing. An agent gets authority over withholding or withdrawing life-sustaining treatment only if the document grants it in writing (50-9-103(4)).
  • Consider two witnesses anyway. Section 50-9-103(4) does not say whether a power of attorney that doubles as a declaration also needs two witnesses. Signing before two adults meets the 50-9-103(1) standard regardless, which removes the question.

Your agent's authority has limits if a court later appoints a guardian. Under 72-5-501(2), the agent then answers to the guardian as well as to you, and the guardian gains the same right to revoke or amend the document that you had. The same subsection lets you nominate your own guardian in a durable health care power of attorney, and the court must follow your most recent nomination except for good cause or disqualification. For what happens when no one holds any document at all, see what happens without a directive.

When a Montana Declaration Takes Effect

A Montana living will does nothing while you can speak for yourself. Section 50-9-105(1) makes it operative only when both of these are true:

  • it has been communicated to your attending physician or attending APRN, and
  • that clinician determines you are in a terminal condition and no longer able to make decisions about life-sustaining treatment.

Section 50-9-102(16) defines a terminal condition as an incurable or irreversible condition that, without life-sustaining treatment, will in the clinician's opinion result in death within a relatively short time. The Act contains no separate trigger for permanent unconsciousness.

Four limits apply once it operates:

  1. Comfort care continues. The Act does not affect a provider's duty to give treatment, including nutrition and hydration, for comfort or pain relief (50-9-202(2)).
  2. Pregnancy. Treatment cannot be withheld or withdrawn from a patient known to be pregnant while it is probable the fetus will develop to live birth with continued treatment (50-9-202(3)).
  3. You still decide while you can. A qualified patient may keep making decisions about life-sustaining treatment as long as the patient is able (50-9-202(1)).
  4. Organ donation. For a prospective donor in a health care facility, measures needed to keep an organ suitable for transplant may not be withheld or withdrawn unless your declaration expressly says otherwise (72-17-216(2)).

A provider who will not comply must take all reasonable steps to transfer your care to someone who will (50-9-203).

Who Decides About Life Support Without a Declaration

Montana does have a statutory list of relatives, but it is narrow. MCA 50-9-106 applies only when the attending physician or APRN has found you in a terminal condition and unable to decide, and you have no effective declaration. The authority to consent or refuse runs in this order:

  1. your spouse,
  2. your adult child, or a majority of your adult children who are reasonably available,
  3. your parents,
  4. your adult sibling, or a majority of your adult siblings who are reasonably available,
  5. your nearest other adult relative by blood or adoption.

The consent must be in writing, witnessed by two individuals, and given to the attending physician or APRN (50-9-106(1)). If a class is unavailable or declines, the next class decides. An equal split inside a class does not hand the decision down (50-9-106(4)). A consent that conflicts with your own expressed intention is not valid (50-9-106(5)).

That list does not cover ordinary medical decisions, and it does not reach anyone outside your family. An unmarried partner has no place on it. A full guardian may act under 72-5-321, but 72-5-321(2)(c) bars a guardian from consenting to withholding life-sustaining treatment or to a do not resuscitate order without authority under Title 50 chapter 9 or 10, and the court may not grant that authority against the ward's known wishes.

Revoking a Montana Directive

You can revoke a declaration at any time and in any manner, regardless of your mental or physical condition (50-9-104(1)). The revocation takes effect when you or a witness to it tells your attending physician, APRN or another health care provider. A provider or EMS crew member who sees you revoke must act on it and tell the attending clinician, and the revocation goes into your medical record (50-9-104(1), (2)).

For a health care power of attorney, 72-5-502(2) lets an agent who acted in good faith prove, by affidavit, that the agent did not know the power had been revoked at the time. So tell your agent, your doctors and anyone holding a copy when you change your mind. If a court appoints a guardian, the guardian can revoke or amend your health care power of attorney too (72-5-501(2)).

The Health Care Declaration Registry

Sections 50-9-501 through 50-9-505 direct the Montana Attorney General to keep a health care declaration registry, reachable through a website the office maintains. Filing is optional. You or someone you designate may file a declaration (50-9-502(1)). Skipping the registry does not affect the declaration's validity, and neither does forgetting to report a revocation to it (50-9-502(3)). Providers are not required to search it (50-9-502(4)).

When the office accepts a filing, 50-9-503 has the office check it against 50-9-103, store a digital copy, issue you an access code, and return your original with two wallet cards. Attending physicians, APRNs and hospital records staff get confidential passwords to search for a patient who cannot communicate (50-9-504). We could not confirm the registry's current filing address from the Attorney General's website, so check with that office before you mail anything.

POLST and Do Not Resuscitate Orders

A POLST is a medical order, not a planning document. The Montana Department of Public Health and Human Services publishes the Montana Provider Orders for Life-Sustaining Treatment form, revised January 2024 and printed on terra green paper. You or your legal decision maker signs it, and so does a Montana licensed physician, APRN or physician assistant. The form covers CPR in Section A, medical interventions in Section B and artificial nutrition in Section C. It states: "If Section A or B is not completed, full treatment for that section is implied."

No Montana statute names the POLST. Do not resuscitate orders sit in Title 50, chapter 10. Under 50-10-103(1), EMS personnel follow the DNR protocol when shown DNR identification, an oral DNR order given directly by a physician or APRN, or a written DNR order on a department form.

Signed in Another State

A declaration signed elsewhere counts in Montana if it was executed in a manner much like 50-9-103 and complied with the law of the state where you signed it (MCA 50-9-111). The health care power of attorney sections contain no matching rule, so a Montana resident with an out-of-state agent document should have it reviewed here.

Penalties for Tampering

Section 50-9-206 makes it a misdemeanor, punishable by a fine of up to $500, up to 1 year in the county jail, or both, to conceal, cancel, deface or forge someone's declaration or revocation, to require or prohibit a declaration as a condition of insurance or health care, or to coerce or trick someone into signing one.

Next Steps

  1. Decide whether you want a declaration, a health care power of attorney, or both in one document.
  2. Sign the declaration before two adult witnesses. Put the durability words and any life-support authority into your health care power of attorney.
  3. Give copies to your agent, your designee and your doctors, and ask that they go into your medical record.
  4. Pair the health care side with Montana power of attorney for money and property, then review the rest of a Montana plan.

Sources:

It is not legal advice.

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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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