A Montana durable power of attorney (DPOA) form is a legal document that allows someone (“an agent”) to make legal decisions on behalf of another person (“a principal”). When granting this authority, the principal must be sound of mind and aware that the form will remain effective upon his or her disability or incapacity.
In Montana, a DPOA is usually needed for financial-related affairs, like depositing checks, filing taxes, or conducting real estate transactions.
Laws
In Montana, power of attorney forms are durable by default.
- Relevant Laws: §§ 72-31-301 — 72-31-367 (Uniform Power of Attorney Act).
- Presumed Durable: Yes. (§ 72-31-304).
- Signing Requirements: The principal’s signature is required.
- Notarization: The signature is assumed to be genuine if it was acknowledged before a notary public. (§ 72-31-305) If the agent signs the optional Agent Certification, this signature should also be acknowledged before a notary public.(§ 72-31-354) For a Real Estate Power of Attorney, the signature must also be witnessed by 2 individuals in order to make the form legally valid.
- Statutory Form: Yes — § 72-31-353.
Definitions
Durable – “Durable”, with respect to a power of attorney, means not terminated by the principal’s incapacity” (§ 72-31-302(2)).
Power of Attorney – “Power of attorney” means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used (§ 72-31-302(7)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
Based on the Montana Code Annotated 2023 (Title 72, Chapter 31, Part 3 regarding Gifts under the Uniform Power of Attorney Act), there are some limitations to the agent’s authority when it comes to gifts.
Types of Gifts:
- Outright gifts to individuals: The agent can make gifts of the principal’s property directly to individuals, up to the annual dollar limits of the federal gift tax exclusion under section 2503(b) of the Internal Revenue Code, or twice that amount if the principal’s spouse agrees to consent to a split gift pursuant to section 2513 of the Internal Revenue Code.
- Consent to splitting gifts made by the principal’s spouse: The agent can consent to the splitting of a gift made by the principal’s spouse, up to the aggregate annual gift tax exclusions for both spouses.
Considerations:
- The value and nature of the principal’s property.
- The principal’s foreseeable obligations and need for maintenance.
- Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes.
- Eligibility for benefits, programs, or assistance under statutes or regulations.
- The principal’s personal history of making or joining in making gifts.
Agent’s Authority Limitations
The statutory power of attorney form in Montana allows a principal (the person granting the POA) to authorize an agent to make decisions concerning the principal’s property and financial affairs. This authority can be general or limited to specific areas as defined in the document.
It is crucial to select a trustworthy agent because, unless specified otherwise, the agent’s authority continues until the principal’s death, revocation of the POA, or until the agent resigns or can no longer act for the principal. The POA can be effective immediately or start on a future date or event, according to the principal’s instructions (§ 72-31-353).
Revocation and Termination
You can cancel your Durable Power of Attorney anytime you want, as long as you’re in a good mental state to make decisions (§ 72-31-310). Here’s how you do it:
- Write It Down: Put your decision to cancel the DPOA in writing.
- Tell Your Agent: Make sure your agent and anyone else who was using the DPOA know about your decision.
When Does the Agent’s Power Stop?
Your agent’s role stops when:
- You pass away.
- You decide to cancel the DPOA.
- Your agent can’t or won’t take on the role anymore.
- The DPOA reaches its end date, if it has one.
Steps Needed to Revoke
If you decide to revoke, just follow these steps:
Step 1 – Write a notice that says you’re canceling the DPOA and give it to your agent and any third parties relying on it.
Step 2 – Collect all copies from your agent and anywhere else it was used.
Step 3 – If the document was filed with any government offices (like for property deals), also file your cancellation notice there.
Cost Considerations
Revoking a Power of Attorney involves minimal costs, which may include notary fees, legal consultation fees, and recording fees.
- Notary Fees: Notarization of the revocation is mandatory, with fees ranging from $5 to $10 per signature.
- Legal Fees: Consulting an attorney is optional but recommended for complex issues. Costs vary, with flat fees between $100 and $500 or hourly rates, depending on the attorney’s experience.
- Recording Fees: If the original was recorded, the revocation should be too, at a cost of $20 to $50, depending on the county.
Safekeeping and Registration
Montana does not have a statewide registry for Durable Powers of Attorney aside from the Montana End-of-life Registry for advance directives. Therefore, it is crucial for the principal to keep the original document in a safe, accessible location and inform trusted individuals, such as family members or an attorney, of its location.
Additional Resources
- Montana Law Help offers a comprehensive guide on the financial aspects of Power of Attorney in Montana. This resource includes information on how to designate agents or coagents, the validity and effectiveness of a POA, and details on agent compensation and responsibilities.
- Montana State University Extension provides examples and explanations based on the Montana Uniform POA Act and offers further detail on the scope of an agent’s authority and limitations under Montana law, as well as specific scenarios and questions, such as dealing with coagents, handling financial affairs not covered by a trust, revoking, and the validity of POAs signed in other states or before the Uniform POA Act became effective.
