Adult Guardianship and Conservatorship Petition Requirements in Montana

At a glance

Requirements one by one

Proceeding and state terminology

Montana separates personal guardianship in Title 72, chapter 5, part 3 from conservatorship and other property-protection orders in part 4. If an adult can meet physical-health and safety needs once someone else manages finances, § 72-5-316 directs the court to treat the guardian petition as a protective proceeding rather than transfer personal authority.

Who may file and where

Section 72-5-315 permits the adult or anyone interested in the adult's welfare, including the county attorney, to seek guardianship. Section 72-5-401 permits the adult, a person interested in the estate, affairs, or welfare, a parent, guardian, or custodian, or a person adversely affected by ineffective property management to seek a conservator or another protective order.

Guardian venue under § 72-5-311 is residence or presence, with an additional option where a court ordered institutional admission. Conservator venue under § 72-5-407 is residence or, for a nonresident, any Montana place holding the adult's property.

What the petition must contain

Section 72-5-319 requires the guardian petition to state the alleged incapacity and supporting facts, current fiduciaries, proposed guardian, close relatives and custodian, affected property, alternatives tried or why none were tried, why alternatives fail, full-versus-limited scope, requested protection, requested right limits, and duration.

The conservator petition under § 72-5-402 is shorter. It identifies the petitioner, adult, guardian, nearest relative, property and income, necessity, proposed conservator and priority. It must also affirm that no mental-health care advance directive exists or attach the directive.

Proof required for appointment

For guardianship, § 72-5-316 requires the court to be satisfied that the adult is incapacitated, identified needs cannot be met by a less restrictive alternative, and personal intervention is necessary to meet essential physical health or safety needs.

For conservatorship, § 72-5-409 requires inability to manage property and affairs effectively plus likely waste or dissipation without management, or the need for protected funds for the adult or dependents. Neither section states a named evidentiary burden such as clear and convincing evidence.

Alternatives the court must address

The guardian track makes alternatives explicit twice: § 72-5-319 requires the petition to describe alternatives implemented or explain why none were, and § 72-5-316 bars appointment unless they cannot meet the identified needs. The court may create a limited guardian or conservator instead of the full guardian requested.

Part 4 permits a conservator or another protective order, but § 72-5-409 does not separately require a finding that less restrictive alternatives failed.

Notice, service, and hearing timing

Under § 72-5-314, the adult, spouse, and in-state parents receive personal service in a guardian case; adult children, existing fiduciaries or custodians, and a closest relative where needed also receive notice. Section 72-1-301 supplies the ordinary 14-day mail or personal-delivery timing. The adult's waiver is ineffective unless the adult attends or the visitor confirms it.

Section 72-5-403 expressly requires personal service in a conservator case on the adult and spouse or parents at least 14 days before hearing. Its adult-waiver rule is similarly tied to attendance or visitor confirmation.

Counsel and hearing rights

Guardian counsel is not automatic. Section 72-5-315 allows chosen counsel and lets the court, in the interest of justice, appoint an official or direct the public defender to assign counsel. The adult may attend and hear all evidence, present evidence, cross-examine the physician and visitor, and demand a jury. The adult or counsel may instead request a closed hearing without a jury.

Conservatorship reverses the counsel default. Section 72-5-408 requires public- defender assignment unless the adult has chosen counsel. Part 4 does not repeat the guardian section's express jury and evidence-rights list.

Medical evidence or court evaluator

Guardianship requires both. Under §§ 72-5-313 and 72-5-315, a court-appointed physician examines and reports, while a trained, disinterested visitor interviews the adult, petitioner and proposed guardian, visits current and proposed homes, and reports to the court.

Conservatorship makes those appointments discretionary. Section 72-5-408 allows the court to order a physician or qualified professional examination keyed to the alleged disability and to send a visitor, who may be a guardian ad litem or court officer or employee.

Limits on the order

Sections 72-5-306 and 72-5-316 limit guardianship to actual functional need and forbid powers beyond the petition. A limited order states its powers, duties and period. The order must say that every right not specifically limited remains with the adult.

In the financial track, §§ 72-5-408 and 72-5-409 permit appointment or another appropriate protective order once the statutory basis is established. Temporary guardianship is separate under § 72-5-317: immediate-action authority lasts no more than six months and may include only powers required by the circumstances.

What trips people up

Counsel protection is stronger in the financial track. Guardianship counsel is discretionary in the interest of justice unless the adult retains counsel. Conservatorship counsel is assigned automatically when the adult has not chosen a lawyer.

The statute does not label the proof burden. The appointment provisions say when the court must be “satisfied” or “determines” the statutory facts, but do not assign a clear-and-convincing or preponderance label.

Common questions

Can the adult demand a jury in a guardian case?

Yes. Section 72-5-315 expressly provides a jury right. The adult or counsel may instead request a closed hearing without a jury.

Are a physician and visitor mandatory in conservatorship?

Not ordinarily. Section 72-5-408 says the court may order the examination and may send a visitor. Both are mandatory in the guardian track.

Does appointment erase every civil right?

No. Sections 72-5-306 and 72-5-316 preserve all rights not expressly limited by the order or specifically granted to the guardian.

How long may a temporary guardian serve?

No more than six months under § 72-5-317, with only the powers required by the immediate circumstances.

Statutes and sources

• Mont. Code Ann. § 72-1-301: general notice methods and 14-day timing. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-101: incapacity and protective-proceeding definitions. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-306: purpose, actual-limit scope, and retained rights. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-311: guardian venue. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-313: visitor qualifications and disinterest. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-314: guardian-case recipients, service, and waiver. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-315: standing, counsel, physician, visitor, participation, and jury. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-316: findings, alternatives, limits, and retained rights. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-317: temporary-guardian duration and powers. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-319: guardian petition contents and alternatives. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-401: conservator/protective-order standing. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-402: conservator petition contents and directive filing. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-403: conservator-case personal service and 14-day rule. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-407: conservator venue. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-408: automatic counsel, discretionary examiner/visitor, hearing, and order. Official text (accessed 2026-07-19).
• Mont. Code Ann. § 72-5-409: adult conservatorship/protective-order basis. Official text (accessed 2026-07-19).