72-5-421. Powers of court as to property and affairs of protected persons generally -- temporary conservatorship. The court has the following powers that may be exercised directly or through a conservator in respect to the estate and affairs of protected persons:
(1) While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing and without notice to others, the court has power to preserve and apply the property of the person to be protected as may be required for the protected person's benefit or the benefit of the protected person's dependents. If the court finds that the welfare of the person requires immediate action, it may, with or without notice, appoint a temporary conservator for the person for a specified period not to exceed 6 months. The court may designate the authority of the temporary conservator, depending on the needs and circumstances of the protected person. The court may not invest a temporary conservator with more powers than are required by the circumstances necessitating the appointment. The order of appointment of a temporary conservator must state the specific powers and duties of the temporary conservator.
(2) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor that are or might be necessary for the best interests of the minor, the minor's family, and members of the minor's household.
(3) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and members of the person's household, all the powers over the person's estate and affairs that the person could exercise if present and not under disability, except the power to make a will. These powers include but are not limited to the power to:
(a) make gifts;
(b) convey or release the person's contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety;
(c) exercise or release the person's powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment;
(d) enter into contracts;
(e) create revocable or irrevocable trusts of property of the estate that may extend beyond the person's disability or life;
(f) exercise options of the disabled person to purchase securities or other property;
(g) exercise the person's rights to elect options and change beneficiaries under insurance and annuity policies and surrender the policies for their cash value;
(h) exercise the person's right to an elective share in the estate of the person's deceased spouse and renounce any interest by testate or intestate succession or by inter vivos transfer.
(4) The court may exercise or direct the exercise of its authority to exercise or release powers of appointment of which the protected person is donee, to renounce interests, to make gifts in trust or otherwise exceeding 20% of any year's income of the estate, or to change beneficiaries under insurance and annuity policies, only if satisfied, after notice and hearing, that it is in the best interests of the protected person and that the protected person either is incapable of consenting or has consented to the proposed exercise of power.
(5) An order made pursuant to this section, determining that a basis for appointment of a conservator or other protective order exists, has no effect on the capacity of the protected person.
History: En. 91A-5-408 by Sec. 1, Ch. 365, L. 1974; R.C.M. 1947, 91A-5-408; amd. Sec. 1, Ch. 42, L. 2007.
Structure Montana Code Annotated
Title 72. Estates, Trusts, and Fiduciary Relationships
Chapter 5. Upc -- Persons Under Disability Guardianship and Conservatorship
Part 4. Protection of Property of Minors and Persons Under Disability
72-5-401. Original petition for appointment or protective order -- who may petition
72-5-402. Contents of petition
72-5-404. Request for notice -- interested person
72-5-405. Exclusive and concurrent jurisdiction of particular court after petition and notice
72-5-406. Consent to jurisdiction by acceptance of appointment as conservator
72-5-408. Procedure concerning hearing and order on original petition
72-5-409. Cause for appointment of conservator or issuance of protective order
72-5-410. Who may be appointed conservator -- priorities
72-5-411. Bond -- court may require -- amount
72-5-412. Terms and requirements of bond
72-5-413. Petitions for orders subsequent to appointment -- interested persons
72-5-414. Resignation or removal of conservator for cause -- successor conservator
72-5-415. Public administrator as conservator when no other appropriate person
72-5-416. through 72-5-420 reserved
72-5-423. Fiduciary duty of conservator
72-5-424. Inventory and records
72-5-425. Title by appointment as conservator -- appointment not transfer for certain purposes
72-5-426. Letters as evidence of transfer of assets -- recording
72-5-427. Powers of conservator in administration
72-5-428. Distributive powers and duties of conservator generally
72-5-430. Enlargement or limitation of powers of conservator by court
72-5-431. Preservation of estate plan -- right to inspect will
72-5-432. Compensation and expenses
72-5-433. Claims against protected person -- presentment, allowance, and payment -- priorities
72-5-434. Transaction involving conflict of interest -- voidable -- exceptions
72-5-435. Persons dealing with conservator -- protection
72-5-436. Claims arising during conservatorship -- individual liability of conservator
72-5-437. Termination of conservatorship
72-5-438. Accounts -- final and intermediate
72-5-439. Payment of debt and delivery of property to foreign conservator without local proceedings
72-5-440. through 72-5-443 reserved
72-5-444. Petition to authorize proposed action -- substituted judgment
72-5-449. No duty to propose action
72-5-450. Production of protected person's other relevant estate plan documents