Do you live in Big Sky Country? If you live in Montana, then you may have heard about the recent changes to its guardianship laws. It’s not always easy to make sense of how guardianship works in Montana for children and families, so keep reading to learn more.
Jump ahead to these sections:
- What Types of Guardianship Exist in Montana?
- Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Montana?
- What Forms Do You Need to File for Guardianship in Montana?
- How Do You File for Guardianship in Montana?
- How Do You Assign a Guardian for a Minor Child in Montana?
- How Guardianship Works for Minor Children
- How Guardianship Works for Older Adults
- How Guardianship Works for Adults With Developmental Disabilities or Special Needs
- Frequently Asked Questions: Guardianship in Montana
In 2021, Montana amended several sections of its guardianship laws. It also modified its laws to request less restrictive options in guardianship proceedings and cases.
Guardianship is an important consideration when you begin your end-of-life planning. If this is your first time reading about guardians, then you may be asking, “What is a guardian?” A guardian is someone who is appointed by the courts or by a will to be responsible for making the decisions for another person. The person under guardianship is called a ward. A ward can be either a minor child or an adult.
If you are considering guardianship in Montana, then this article is for you. Here we will discuss how guardianship works in Montana for children and families.
What Types of Guardianship Exist in Montana?
There are different types of guardianships in Montana including the following:
These types of guardianships will be discussed in greater detail in the following sections.
Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Montana?
A guardianship is a legal relationship between the guardian and either a minor child or an adult. Parents typically have custody and control of their minor children and are considered their guardians absent a court order.
Adults are responsible for their own custody and control and do not have default guardians. While they do not have default guardians, the court will give priority to certain persons when appointing a guardian. For adults this includes their spouse, adult child, or parent.
What Forms Do You Need to File for Guardianship in Montana?
In Montana, you file different forms depending on whether you are filing for guardianship of a minor child or guardianship of an adult. The Supreme Court of Montana provides links to some guardianship and conservatorship forms, including the guardianship of a minor child forms listed below.
Note that this website does not provide links to forms for guardianship of an adult. If you are pursuing guardianship of an adult in Montana, you should consult with an attorney to draft a petition for a finding of incapacity and appointment of a guardian as well as the other necessary forms.
Guardianship of a minor child
In Montana, you fill out separate forms for each minor child, even if the children are related. If you are filing for guardianship of a minor child, you may need file the following forms:
- Petition for guardianship of a minor child
- Oath and affirmation of guardian
- Consent to guardianship of a minor child
- Nomination of guardian by minor child age 14 or older
- Order setting hearing
- Notice of hearing on guardianship of a minor child
- Certificate of mailing or delivery of notice of hearing
- Order for guardianship of a minor child
- Letters of guardianship
How Do You File for Guardianship in Montana?
In Montana, you must file for guardianship in the appropriate court. The appropriate court is the courthouse of the county where the proposed ward resides.
You file the original forms with the clerk's office. You will also be responsible for paying the filing fee. If you are unable to pay the fee, you may file an affidavit of inability to pay.
You are responsible for filing the appropriate forms in the appropriate order with the correct court. You are also responsible for providing copies of forms and notices to all of the appropriate parties. Once you have filed the appropriate forms with the court, the court will set a hearing date. You are responsible for attending the hearing.
If you have questions about filing for guardianship, it is best to consult with a guardianship attorney licensed in Montana. You may also ask about alternative forms of legal assistance available in your area.
How Do You Assign a Guardian for a Minor Child in Montana?
Guardians for a minor child in Montana are appointed by the court so you cannot assign a guardian. However, a parent may consent to the guardianship of their minor child. Consent tells the court that the parent agrees that the person filing for guardianship should be the minor child’s guardian.
Another way that parents of a minor child may choose a guardian is in their will. This type of appointment is called a testamentary appointment.
How Guardianship Works for Minor Children
In Montana, a minor child is a person under 18 years of age. When we discuss minor guardianship, we are discussing a situation where all parties agree that you should be the guardian of the minor child. This includes the child’s parents as well as other family members and the minor child. If someone objects to the guardianship, the process can become much more complicated.
Life can get complicated and there are an endless number of reasons that a minor child may need a guardian. The minor child’s parents may be facing difficulties that interfere with their ability to care for the minor child. The list of difficulties is endless and can include job reasons (such as relocation or hours), mental health issues, physical health issues, and incarceration.
A minor guardianship terminates with a court order or upon the minor’s:
- Attainment of majority (18th birthday)
A full guardianship grants the guardian all powers, responsibilities, and duties allowed under Montana law. A guardian of a minor has all the powers and responsibilities of a natural parent. The only difference is that the guardian doesn’t legally need to provide funds from their own financial resources for the ward.
The court may limit the powers of a guardian. A limited guardianship has less powers, responsibilities, and duties than a full guardianship.
A temporary guardianship is a guardianship for a limited period of time. It cannot last longer than six months. A temporary guardianship can be used in an emergency situation or in the interim while other guardianship matters are being addressed. In the petition for guardianship, the petitioner would request a temporary guardianship.
We discussed testamentary guardianship in an earlier section. A testamentary guardian is appointed by a parent of a minor in their will. If the minor is 14 years or older, they may object to the appointment of the testamentary guardian and prevent the appointment from becoming effective or cause it to terminate.
If you have questions about a guardianship for a minor child in Montana, consult with a guardianship attorney. Each situation is different.
How Guardianship Works for Older Adults
Age has little to do with guardianship once a person turns 18. If a person is an adult, they have all the rights and responsibilities of an adult.
A person may petition for guardianship of an adult if the adult is an incapacitated person. An incapacitated person is “any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause,” that prevents them from making decisions on their own to some extent.
There are many options to guardianship that are available for an incapacitated person. Before pursuing a guardianship, the petitioner should explore what other options may be available to meet the needs of the proposed ward.
If a guardianship is granted, then it should be the least restrictive guardianship available for the incapacitated person. For example, an incapacitated person may not be able to make healthcare decisions but is able to pay their rent and maintain their home. In that instance, the guardianship may be restricted to healthcare matters.
A full guardian of an incapacitated person has the same powers and duties respecting the ward that a parent has for a minor child. This is rare for adults, though it can happen. It’s more likely the adult will have one of the following types of guardianship.
A limited guardianship gives the guardian less legal duties and powers than a full guardianship. The order appointing the guardian will specify the powers and duties of a limited guardian.
Sometimes an incapacitated person immediately needs a guardian. This may occur when there is an emergency or the person’s health is at immediate risk. When that occurs, the court may appoint a temporary guardian.
A temporary guardian may be either full or limited. If the guardian only has limited powers, the court order will state the guardian’s specific powers and duties.
A temporary guardianship has a limited duration. Again, it may not last longer than six months.
The parent of an unmarried incapacitated person may appoint a guardian of the incapacitated person by will or other signed and witnessed writing. If the incapacitated person is married, then their spouse may appoint a guardian by will or other signed and witnessed writing.
How Guardianship Works for Adults With Developmental Disabilities or Special Needs
As discussed above, once a person turns 18 they have all the rights and responsibilities of an adult. This includes adults with developmental disabilities or special needs.
A guardianship for adults with developmental disabilities or special needs works the same as a guardianship for any adult. This means that the petitioner must show that the adult is an incapacitated person.
Keep in mind that a full guardianship is the most restrictive option. In many instances, there are alternatives to full guardianship that may be available to meet the adult’s needs.
Frequently Asked Questions: Guardianship in Montana
The guardianship process can be overwhelming. Especially when considering the implications for you and your family. Here, we will answer frequently asked questions about guardianship in Montana.
If you have questions about guardianship and your family, then you should consult with a guardianship attorney. The guardianship attorney can answer your questions and provide legal advice if necessary.
How long is temporary guardianship in Montana?
In Montana, a temporary guardian may not serve longer than six months. This is not intended to be a long-term solution.
What’s the difference between guardianship, conservatorship, and custody in Montana?
A guardian and a conservator are both court-appointed to oversee and manage certain aspects of a person’s life. A guardian oversees the custody and control of another person (the ward). A conservator manages the estate of another person (the protected person) and is responsible for the financial matters of the protected person.
In Montana, the courts have moved away from using the term custody and instead use the phrase parenting time. Under a parenting plan, parents can decide where a child lives, the amount of time a child spends with each parent, and how the parents will make decisions about the child. Parenting (custody) is generally used to refer to the relationship between a parent and their child.
Can you get guardianship without going to court in Montana?
No, guardianship is a legal process. In Montana, the court appoints a guardian so you cannot get guardianship without going to court in Montana.
It’s All About Needs
What’s the central focus of any guardianship discussion? It should be the needs of the ward or proposed ward.
When you consider guardianship for anyone, you should consider their needs. Once you understand their needs you can begin to explore the best ways to meet those needs.