72-5-447. Circumstances to be considered in determining whether to authorize or require proposed action. In determining whether to authorize or require a proposed action under 72-5-444 through 72-5-450, the court shall take into consideration all of the relevant circumstances, which may include but are not limited to the following:
(1) whether the protected person has legal capacity for the proposed transaction and, if not, the probability of the protected person's recovery of legal capacity;
(2) the past donative declarations, practices, and conduct of the protected person;
(3) the traits of the protected person;
(4) the relationship and intimacy of the prospective donees with the protected person, their standards of living, and the extent to which they would be natural objects of the protected person's bounty by any objective test based on the relationship, intimacy, and standards of living;
(5) the wishes of the protected person;
(6) any known estate plan of the protected person, including but not limited to:
(a) the protected person's will;
(b) any trust of which the protected person is the settlor or beneficiary;
(c) any power of appointment created by or exercisable by the protected person; and
(d) any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at the protected person's death to another or others that the protected person may have originated;
(7) the manner in which the estate would devolve upon the protected person's death, giving consideration to the age and the mental and physical condition of the protected person, the prospective devisees or heirs of the protected person, and the prospective donees;
(8) the value, liquidity, and productiveness of the estate;
(9) the minimization of current or prospective income, estate, inheritance, or other taxes or expenses of administration;
(10) changes of tax laws and other laws that would likely have motivated the protected person to alter the protected person's estate plan;
(11) the likelihood from all the circumstances that the protected person as a reasonably prudent person would take the proposed action if the protected person had the capacity to do so;
(12) whether any beneficiary is the spouse of the protected person;
(13) whether a beneficiary has committed physical abuse, neglect, false imprisonment, or financial abuse against the protected person after the protected person was substantially unable to manage his or her financial resources or resist fraud or undue influence and whether the protected person's disability persisted throughout the time of the hearing on the proposed action; or
(14) the mandate of 72-5-446 that if the proposed action is taken, the remaining assets of the estate will be adequate to provide for the needs of the protected person and for the support, maintenance and education of those legally entitled to receive such from the protected person.
History: En. Sec. 136, 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