Default Health-Care Surrogate Priority in Montana

At a glance

Requirements one by one

When the default route opens

Under § 50-9-106(1), the attending physician or advanced practice registered nurse must determine that the adult has a terminal condition and can no longer decide about life-sustaining treatment. The person must have no effective declaration, and consent to withhold or withdraw treatment must be written, witnessed by two people, and delivered to the attending clinician. “Terminal condition” means an incurable or irreversible condition expected to cause death in a relatively short time without life-sustaining treatment (§ 50-9-102(16)).

Care or setting covered

This statutory family order covers withholding or withdrawing life-sustaining treatment, defined as a procedure or intervention that only prolongs the dying process for a qualified patient (§§ 50-9-102(9), 50-9-106(1)). Section 50-9-106 does not extend its list to routine surgery, medicines or other ordinary medical decisions.

Guardian or appointed agent

A declaration must be absent for the family consent route (§ 50-9-106(1)(b)). A full guardian may consent or withhold consent as provided in § 72-5-321(2)(c); that section otherwise permits medical-care consent but limits withdrawal of life-sustaining treatment or a DNR order unless authority arises under the terminally-ill or DNR acts or the court grants it.

Family and other eligible people

Section 50-9-106(2) lists spouse, adult children, parents, adult siblings, then the nearest other adult blood or adoptive relative reasonably available for consultation. It does not list an unmarried partner or friend for this decision. The next class becomes authorized when the class above is not reasonably available for consultation and competent to decide, or declines to decide (§ 50-9-106(4)).

Decision within one class

A majority of reasonably available adult children or adult siblings can decide (§ 50-9-106(2)(b), (d)). The statute lists “the parents” without a separate majority formula. An equal division in a class does not authorize the next class to decide (§ 50-9-106(4)).

Decisions limited or excluded

The choice must be in good faith and cannot conflict with the patient's expressed intention (§ 50-9-106(5)). Section 50-9-106(7) prohibits withholding or withdrawal under this section from a patient known to be pregnant while continued treatment probably would permit live birth. The attending clinician's good-faith determination of consent validity is conclusive (§ 50-9-106(6)).

No surrogate or disputed authority

A tied class does not hand authority to a lower class (§ 50-9-106(4)). A full guardian can petition the court for authority to withhold or withdraw life-sustaining treatment or enter a DNR order, but the court cannot grant authority that conflicts with the ward's determinable wishes (§ 72-5-321(2)(c)).

What trips people up

The family hierarchy in § 50-9-106 is tied to terminal-condition treatment withdrawal and a formal written consent. A spouse's first position in that list alone does not make the spouse a general medical agent.

Common questions

Can one adult child consent if another available child disagrees?

If more than one adult child exists, the statute calls for a majority of those reasonably available for consultation; an equal split cannot be resolved by moving to the parents (§ 50-9-106(2)(b), (4)).

Can a guardian override the patient's known wishes?

The guardian's treatment-withdrawal authority is limited, and a court cannot grant further authority that conflicts with the ward's wishes as the court can determine them (§ 72-5-321(2)(c)).

Statutes and sources

• Mont. Code Ann. §§ 50-9-102, 50-9-106 and 72-5-321 — definitions, narrow family consent order and guardian medical authority. Each statute entry above links its current official page, accessed 2026-10-08.