Montana Durable Power of Attorney

The Montana law on durable power of attorney is discussed under Montana Code Sections 72-31-301 to 72-31-367.

A durable power of attorney is a power of attorney by which a principal designates another as the principal’s attorney-in-fact or agent in writing and the writing contains words, that state that the power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time or that the power of attorney becomes effective upon the disability or incapacity of the principal or it may have similar words showing the intent of the principal that the authority conferred must be exercisable notwithstanding the principal’s subsequent disability or incapacity; says Section 72-5-501 of the Montana Code.  It further discusses the powers and duties vested on the durable power of attorney holder or the agent.

The agent shall exercise authority under the durable power of attorney unless it states a time of termination, in spite of the lapse of time since the execution of the instrument.

All acts done by the agent pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and the principal’s successors in interest as if the principal were alive, competent, and not disabled.

Unless the instrument states a time of termination, the agent exercises the powers notwithstanding the lapse of time since the execution of the instrument.

In circumstances where a conservator is appointed for the principal, the agent is accountable to the conservator as well as the principal during the continuance of his appointment.  The conservator has the same power to revoke or amend the power of attorney; as the principal would have if he/she was not disabled or incapacitated.

A principal may nominate, through a durable power of attorney, the conservator of the principal’s estate or guardian of the principal’s person for consideration by the court if protective proceedings for the principal’s person or estate are later commenced.  The court appoints the conservator in accordance with the principal’s most recent nomination in a durable power of attorney except for good cause or disqualification.

The death of a principal of a written durable power of attorney does not revoke or terminate the agency as to the attorney-in-fact, agent, or other person who, acts in good faith under the power of attorney or agency acts without actual knowledge of the death of the principal.   Actions of such durable power of attorney, unless otherwise invalid or unenforceable, binds the successors in interest of the principal.

As to acts undertaken in good faith reliance on a power of attorney, an affidavit executed by the attorney-in-fact or agent stating that the attorney-in-fact or agent did not have, at the time of exercising the power, actual knowledge of the termination of the power by revocation or of the principal’s death, disability, or incapacity is conclusive proof of the nonrevocation or nontermination of the power at that time.

If the exercise of the power requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is also recordable.


Inside Montana Durable Power of Attorney