72-5-302. Testamentary appointment of guardian for incapacitated person -- when effective -- priorities. (1) The parent of an unmarried incapacitated person may appoint by will or other writing signed by the parent and attested by at least two witnesses a guardian of the incapacitated person. If both parents are dead or the surviving parent is adjudged incapacitated, a parental appointment becomes effective when, after having given 7 days' prior written notice of intention to do so to the incapacitated person and to the person having care of the person or to the nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated or, in the case of a nontestamentary nominating instrument, in the court at the place where the incapacitated person resides or is present. The notice must state that the appointment may be terminated by filing a written objection in the court, as provided by 72-5-304. If both parents are dead, an effective appointment by the parent who died later has priority.
(2) The spouse of a married incapacitated person may appoint by will or other writing signed by the spouse and attested by at least two witnesses a guardian of the incapacitated person. The appointment becomes effective when, after having given 7 days' prior written notice of intention to do so to the incapacitated person and to the person having care of the incapacitated person or to the nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated or, in the case of nontestamentary nominating instrument, in the court at the place where the incapacitated person resides or is present. The notice must state that the appointment may be terminated by filing a written objection in the court, as provided by 72-5-304. An effective appointment by a spouse has priority over an appointment by a parent.
History: En. 91A-5-301 by Sec. 1, Ch. 365, L. 1974; R.C.M. 1947, 91A-5-301(1), (2); amd. Sec. 18, Ch. 582, L. 1989.
Structure Montana Code Annotated
Title 72. Estates, Trusts, and Fiduciary Relationships
Chapter 5. Upc -- Persons Under Disability Guardianship and Conservatorship
Part 3. Guardians of Incapacitated Persons
72-5-301. Consent to jurisdiction by acceptance of appointment
72-5-303. Recognition of appointment of guardian by foreign will
72-5-304. Objection by alleged incapacitated person to testamentary appointment
72-5-306. Purpose and basis for guardianship
72-5-307. through 72-5-310 reserved
72-5-311. Venue for proceedings for court appointment of guardian
72-5-312. Who may be guardian -- priorities
72-5-313. Visitor in guardianship proceedings defined
72-5-314. Notices in guardianship proceedings
72-5-316. Findings -- order of appointment
72-5-318. Request for notice -- interested person
72-5-319. Contents of petition for appointment of guardian
72-5-320. Purposes for establishment of limited guardianship
72-5-321. Powers and duties of guardian of incapacitated person