Montana Code Annotated 2023



Part 3. Guardians of Incapacitated Persons

Findings -- Order Of Appointment

72-5-316. Findings -- order of appointment. (1) If the court is satisfied that the person for whom a guardianship is sought is incapacitated, that the identified needs of the person cannot be met by a less restrictive alternative, and that judicial intervention in the person's personal freedom of action and decision is necessary to meet essential requirements for the person's physical health or safety, it may appoint a full guardian having the powers described in 72-5-321 or a limited guardian having the powers described in the order. If the court is satisfied that the allegedly incapacitated person could handle the essential requirements for physical health or safety if the person's financial resources were managed by another, it shall order that the petition be treated as a petition for a protective order under Title 72, chapter 5, part 4, and proceed accordingly. Alternatively, the court may dismiss the proceeding or enter any other appropriate order that is not inconsistent with the specific provisions of this part. In issuing its order, the court shall make specific findings of fact.

(2) The court may not invest a guardian with powers or duties beyond those sought in the petition and may, upon petition for a full guardianship, create a limited guardianship or conservatorship when the court determines that a limited guardianship or conservatorship is all that is required for the care and protection of the incapacitated person. The order must specify whether a full or limited guardianship is being created. In the case of a limited guardianship, the order must specify the particular powers and duties vested in the limited guardian and the period for which the limited guardianship is created.

(3) An incapacitated person may not be limited in the exercise of any civil or political rights except those that are clearly inconsistent with the exercise of the powers granted to the guardian unless the court's order specifically provides for the limitations. The order must state that all rights not specifically limited are retained by the incapacitated person.

History: En. 91A-5-304 by Sec. 1, Ch. 365, L. 1974; R.C.M. 1947, 91A-5-304; amd. Sec. 9, Ch. 344, L. 1981; amd. Sec. 2404, Ch. 56, L. 2009; amd. Sec. 2, Ch. 40, L. 2021.