72-5-444. Petition to authorize proposed action -- substituted judgment. (1) The conservator or other interested person may file a petition under 72-5-444 through 72-5-450 for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes:
(a) benefiting the protected person or the estate;
(b) minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the protected person; or
(c) providing gifts for any purposes and to any charities, relatives (including the protected person's spouse, descendants, or ancestors), friends, or other objects of bounty as would be likely beneficiaries of gifts from the protected person.
(2) The action proposed in the petition may include but is not limited to the following:
(a) making gifts of principal or income, or both, of the estate, outright or in trust;
(b) conveying or releasing the protected 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) exercising or releasing the protected person's powers as donee of a power of appointment;
(d) entering into contracts;
(e) creating for the benefit of the protected person or others revocable or irrevocable trusts of the property of the estate that may extend beyond the protected person's disability or life;
(f) transferring to a trust created by the conservator or protected person any property unintentionally omitted from the trust;
(g) exercising options of the protected person to purchase or exchange securities or other property;
(h) exercising the rights of the protected person to elect benefit or payment options, to terminate or to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following:
(i) life insurance policies, plans, or benefits;
(ii) annuity policies, plans, or benefits;
(iii) mutual fund and other dividend investment plans; or
(iv) retirement, profit sharing, and employee welfare plans and benefits;
(i) exercising the right of the protected person to disclaim any interest that may be disclaimed;
(j) exercising the right of the protected person to revoke or modify a revocable trust or to surrender the right to revoke or modify a revocable trust. The court may not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust:
(i) evidences an intent to reserve the right of revocation or modification exclusively to the protected person;
(ii) provides expressly that a conservator may not revoke or modify the trust; or
(iii) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust.
(3) If an existing trust has been or is being amended, the order of the court may authorize the conservator to execute, after the trust amendment, a new "pour over" will or codicil that devises to the trustee of the amended trust other property of the protected person that had not previously been transferred to the trust.
History: En. Sec. 133, Ch. 264, L. 2013.
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