Adult Guardianship / Conservatorship Petition Packet - Montana

MONTANA ADULT GUARDIANSHIP / CONSERVATORSHIP PETITION PACKET

Important Distinction

A guardian is appointed to protect an incapacitated person's personal health and safety under Mont. Code Ann. Title 72, chapter 5, part 3. A conservator is appointed, or another protective order is entered, to protect property and financial affairs under part 4. A petitioner seeking both forms of relief must satisfy both sets of requirements.

Guardianship may be ordered only to the extent actual limitations require. The court must find that identified needs cannot be met by a less restrictive alternative and must preserve every right not specifically limited. Mont. Code Ann. §§ 72-5-305, 72-5-306, and 72-5-316.

Part 1 — Pre-Filing Checklist

1.1 Relief Requested

☐ Full guardianship

☐ Limited guardianship

☐ Conservatorship

☐ Other protective order concerning property

☐ Temporary guardian under Mont. Code Ann. § 72-5-317

☐ Temporary conservator under Mont. Code Ann. § 72-5-421(1)

1.2 Procedure Checklist

☐ Confirm guardianship venue under § 72-5-311.

☐ Confirm conservatorship venue under § 72-5-407.

☐ Identify and evaluate less restrictive alternatives for guardianship.

☐ Identify every person entitled to guardianship notice under § 72-5-314.

☐ Identify every person entitled to conservatorship notice under § 72-5-403 and any filed request for notice.

☐ Determine whether a mental health care advance directive exists; attach it to a conservatorship petition or affirm that none exists as required by § 72-5-402(3).

☐ Obtain the proposed guardian's and proposed conservator's written contact information and priority basis.

☐ Confirm local filing fee, summons or notice form, service method, proposed-order practice, and hearing-setting procedure with the clerk.

Part 2 — Petition

MONTANA [____________________] JUDICIAL DISTRICT COURT
[____________________] COUNTY

2.1 Petitioner

Name: [PETITIONER FULL LEGAL NAME]

Residence and Mailing Address: [____________________________________________]

Relationship to the person to be protected: [______________________________]

Interest in the matter: [__________________________________________________]

For guardianship, the incapacitated person or any person interested in that person's welfare may petition under § 72-5-315(1). For conservatorship, the persons described in § 72-5-401 may petition.

2.2 Person to Be Protected

2.3 Venue

Guardianship: Venue is proper because the alleged incapacitated person ☐ resides ☐ is present in this county. If institutional admission was ordered by a court, identify the court and county: [________________________________]. See § 72-5-311.

Conservatorship: Venue is proper because the person to be protected ☐ resides in this county ☐ does not reside in Montana but has property in this county. See § 72-5-407.

2.4 Proposed Guardian and Conservator

Proposed Guardian: [NAME, RESIDENCE, MAILING ADDRESS, TELEPHONE, EMAIL]

Priority and suitability under § 72-5-312: [____________________________________]

Known disqualification, conflict, creditor relationship, or substantial professional or business service under § 72-5-312(4): ☐ None ☐ [EXPLAIN]

Proposed Conservator: [NAME, ADDRESS, TELEPHONE, EMAIL]

Priority and qualifications under § 72-5-410: [________________________________]

2.5 Guardianship Allegations

Complete this Section if guardianship is requested.

Nature and degree of alleged incapacity (§ 72-5-319(1)(c)):

[____________________________________________________________]

Reasons appointment is sought (§ 72-5-319(1)(i)):

[____________________________________________________________]

Less restrictive alternatives implemented, or reasons none were implemented:

Facts supporting incapacity and need for a guardian (§ 72-5-319(1)(k)):

[____________________________________________________________]

Specific areas of protection and assistance requested and rights proposed to be limited (§ 72-5-319(1)(l)):

[____________________________________________________________]

Choose one:

☐ Limited guardianship. Particular powers and areas of authority requested under §§ 72-5-319(1)(m) and 72-5-320: [________________________________]. Requested term: [________________].

☐ Full guardianship. Expected duration under § 72-5-319(1)(n): [________________]. Explain why limited authority is insufficient: [________________________________].

2.6 Conservatorship or Protective-Order Allegations

Complete this Section if property relief is requested.

Under § 72-5-409(2), the requested relief is necessary because:

1. the person is unable to manage property and affairs effectively for this reason: [____________________________________________________________]; and
2. ☐ property will be wasted or dissipated without proper management ☐ funds are needed for the support, care, and welfare of the person or persons entitled to support, and protection is necessary or desirable to obtain or provide those funds.

General statement and estimated value of property (§ 72-5-402(1)(e)):

Reason a conservator or other protective order is necessary (§ 72-5-402(1)(f)):

[____________________________________________________________]

Nearest known relative — name and address (§ 72-5-402(1)(d)): [____________]

Existing guardian — name and address, if any (§ 72-5-402(1)(c)): [____________]

Mental health care advance directive (§ 72-5-402(3)):

☐ No mental health care advance directive exists.

☐ A directive exists and is attached as Exhibit [____].

2.7 Persons Closely Related and Notice Information

For guardianship, list the names, residences, and relationships of persons most closely related by blood or marriage and identify the person or institution with care and custody. See § 72-5-319(1)(g) and (h).

2.8 Temporary Relief

Temporary guardian: State with specificity the emergency or immediate-welfare facts, whether no guardian exists or an appointed guardian is not effectively performing duties, the powers strictly required, and the requested period not exceeding six months. See §§ 72-5-317 and 72-5-319(2).

[____________________________________________________________]

Temporary conservator: State the immediate-action facts, property to preserve or apply, powers strictly required, and requested period not exceeding six months. Section 72-5-421(1) requires a pending petition and preliminary hearing.

[____________________________________________________________]

2.9 Requested Relief

Petitioner asks the Court to:

1. set the matter for hearing and direct legally sufficient notice and service;
2. appoint the physician and visitor required for a guardianship proceeding under § 72-5-315(3);
3. address representation by counsel under the distinct rules in §§ 72-5-315(2) and 72-5-408(2);
4. find the statutory grounds established;
5. appoint [NAME] as ☐ full guardian ☐ limited guardian and specify every granted power, limited right, and the term;
6. appoint [NAME] as conservator or enter this other protective order: [________________________________];
7. set bond or other security as appropriate under § 72-5-411; and
8. grant only further relief authorized by law and supported by the evidence.

2.10 Verification

I, [PETITIONER NAME], verify that I have read this Petition and that its factual statements are true and correct to the best of my knowledge and belief. This verification is made under Mont. Code Ann. § 72-1-310.

Petitioner's Signature: ____________________________________

Printed Name: [________________________________]

Date: [__/__/____]

Part 3 — Notice and Service Worksheet

3.1 Guardianship

Section 72-5-314 requires notice to the alleged incapacitated person and that person's spouse, parents, and adult children; any current guardian or conservator; the person having care and custody; and, if no person is notified in the first family category, at least one closest adult relative if one can be found.

The alleged incapacitated person and any spouse or parent found in Montana must be served personally. Other notice is governed by § 72-1-301. The alleged incapacitated person's waiver is ineffective unless the person attends the hearing or the visitor confirms the waiver in an interview.

3.2 Conservatorship

Section 72-5-403 requires personal service on the person to be protected and that person's spouse, or if none, parents, at least 14 days before the hearing if found in Montana. Other notice is governed by § 72-1-301. Serve persons who requested notice under § 72-5-404 and any additional persons directed by the Court.

Part 4 — Respondent's Procedural Rights

4.1 Guardianship Rights Under § 72-5-315

• The alleged incapacitated person may retain counsel of choice. The court may appoint counsel in the interest of justice; appointment is not automatic under the guardianship subsection.
• A court-appointed physician must examine the person and file a written report.
• A court-sent visitor must interview the person, the person who appears to have caused the petition to be filed, and the nominee; visit the current and proposed residences; and file a written report.
• The person is entitled to be present, see or hear all evidence, be present by counsel, present evidence, cross-examine witnesses, and have a jury trial.
• The matter may be decided at a closed hearing without a jury if the person or counsel requests that procedure.

4.2 Adult Conservatorship Rights Under § 72-5-408(2)

• If the person to be protected does not have counsel of choice, the court must order the Office of State Public Defender to assign counsel.
• Depending on the alleged disability, the court may direct an examination by a designated physician or professional person.
• The court may send a visitor to interview the person.

Part 5 — Evaluation Worksheet

Use this worksheet for the court-appointed physician and visitor in a guardianship case, or for an examination or visit ordered in a conservatorship case. It is not a substitute for a court order or a professional's own report.

Signature: ____________________________________ Date: [__/__/____]

Part 6 — Proposed Findings and Order Checklist

6.1 Guardianship Findings Under § 72-5-316

☐ The person is incapacitated.

☐ Identified needs cannot be met by a less restrictive alternative.

☐ Judicial intervention in personal freedom of action and decision is necessary to meet essential requirements for physical health or safety.

☐ The order makes specific findings of fact.

☐ The order states whether the guardianship is full or limited.

☐ A limited order states each power and duty and the period of appointment.

☐ The order states that all rights not specifically limited are retained.

6.2 Conservatorship Findings and Terms

☐ Grounds under § 72-5-409 are established after notice and hearing.

☐ The proposed conservator's priority and qualifications under § 72-5-410 are addressed.

☐ Bond is ☐ required ☐ not required. If required, calculate the amount under § 72-5-411 unless the Court directs otherwise.

☐ Any temporary order identifies only necessary powers and a period not exceeding six months.

6.3 Appointment Terms

Guardian: [NAME]

☐ Full guardianship

☐ Limited guardianship with these powers and duties: [________________________]

Rights specifically limited: [____________________________________________]

Rights retained: All rights not specifically limited, including: [________]

Term or review date: [____________________________________________________]

Conservator: [NAME]

Bond or security: [_______________________________________________________]

Restricted assets or transactions: [_____________________________________]

Part 7 — Post-Appointment Checklist

Guardian

☐ Review the precise powers and limits in the appointment order.

☐ File reports as required by the order, court rule, and § 72-5-321. A full guardian reports annually unless the Court waives that requirement.

☐ Do not withhold or withdraw life-sustaining treatment or consent to a do-not-resuscitate order unless authority exists under the statutes identified in § 72-5-321(2)(c) or the Court grants authority consistent with that subsection.

☐ Follow the commitment limitations in § 72-5-321(5) and (6).

Conservator

☐ File the complete inventory and oath or affirmation within 90 days after appointment under § 72-5-424.

☐ Keep suitable administration records and exhibit them upon a proper request under § 72-5-424(2).

☐ Account to the Court at least annually unless the Court directs otherwise, and upon resignation, removal, or termination as required by § 72-5-438.

☐ Exercise only statutory and court-granted powers, observe bond and restricted-account terms, and obtain legal advice before extraordinary transactions.

Sources and References

• Montana Courts, Guardianship and Conservatorship resources: https://courts.mt.gov/forms/guardianship
• Montana Code Annotated, Title 72, chapter 5, part 3 (guardians of incapacitated persons): https://mca.legmt.gov/bills/mca/title_0720/chapter_0050/part_0030/sections_index.html
• Montana Code Annotated, Title 72, chapter 5, part 4 (conservatorship and protective orders): https://mca.legmt.gov/bills/mca/title_0720/chapter_0050/part_0040/sections_index.html
• Mont. Code Ann. §§ 72-1-202 and 72-1-310 (jurisdiction and verification): https://mca.legmt.gov/bills/mca/title_0720/chapter_0010/parts_index.html