Living will requirements in Montana

Which document is this, really

Montana does not use the words living will or advance directive in its own statute. What you sign is called a Declaration, made under the Montana Rights of the Terminally Ill Act, and it is a written statement of the treatment you do and do not want if you are ever unable to speak for yourself. The same document can go further: within the Declaration itself, you may name a designee, another adult who can make those withhold-or-withdraw decisions for you once the Declaration takes effect.

Montana also opens a second, separate door to the same outcome. Instead of naming your designee inside the Declaration, you can put that authority into a durable health care power of attorney, a document governed by two short sections of Montana’s probate code rather than by the Rights of the Terminally Ill Act. If that power of attorney gives your attorney-in-fact written authority over life-sustaining treatment, Montana law treats it as if it were a Declaration naming that person, even though it was never signed as one. The two routes are not signed the same way, and the rest of this page keeps them apart rather than blending them.

Neither route requires you to use a particular form. Montana’s statute prints two model declarations, one plain and one that names a designee, and both are described as forms you “may but need not” use. This is exactly what Myend’s Healthcare Directive prepares for Montana: a Declaration naming your designee inside it, formatted the way Montana’s Act expects.

Who can make a Montana Declaration

Montana asks for one thing: you must be an individual of sound mind and 18 years of age or older. The Act does not carve out an exception for a married or emancipated minor, and it does not describe a separate process for someone younger. The same 18-or-older line applies to the person you name as your designee.

Signing it so it counts

Which ceremony applies depends on which route you use. The Declaration itself, whether or not it names a designee, is signed one way. The separate durable health care power of attorney is signed a different way entirely.

The Declaration

1. 1You sign

   You sign the Declaration, or direct someone else to sign it for you, at your own direction.

2. 2Two witnesses

   Two individuals witness your signature. That is the full requirement. Montana’s Act does not ask for a notary at all, for the plain Declaration or the version that names a designee.

The separate durable health care power of attorney

Those two sections set their own, much lighter rule for this route: a writing that names your attorney-in-fact and carries the durability wording the statute spells out, saying either that the power is not affected by your later disability or incapacity, or that it takes effect on that disability or incapacity, or words to the same effect. There is no witness requirement and no notary requirement anywhere in them. If the writing also gives your attorney-in-fact authority over life-sustaining treatment, it functions as a Declaration naming a designee, signed under an entirely different set of rules than the ones above.

Naming your designee

Montana calls the person you name your designee, whether they are named inside the Declaration or through the separate power of attorney (where the statute for that route calls them your attorney-in-fact or agent). Either term describes the same job: making the withhold-or-withdraw decisions about life-sustaining treatment that you would otherwise make yourself.

Montana’s Act sets one requirement for who can serve, the same one it sets for you: sound mind, 18 years of age or older. It names no category of person who cannot be your designee, no relative exclusion, no rule against naming someone who works at your care facility. Choose someone you trust to carry out your wishes, since the law itself gives you no other guardrail.

One limit sits on the decision rather than on the person. Nothing in the Act relieves your attending physician, attending advanced practice registered nurse, or any other provider of the responsibility to keep treating you for comfort or to relieve pain, and that includes nutrition and hydration given for those purposes. Neither you nor your designee can direct that away.

When it takes effect

Your Declaration becomes operative once two things are both true: it has been communicated to your attending physician or attending advanced practice registered nurse, and that clinician has determined you are in a terminal condition and can no longer make decisions about your own life-sustaining treatment. Montana defines a terminal condition as an incurable or irreversible one that, without life-sustaining treatment, will result in death within a relatively short time. One clinician makes that call, not a second opinion from another, and Montana is one of the states that lets an advanced practice registered nurse make it, not only a physician.

If you are pregnant

Montana’s pause is conditional, not automatic. If your attending physician or advanced practice registered nurse knows you are pregnant, life-sustaining treatment cannot be withheld or withdrawn under your Declaration for as long as it remains probable that continued treatment would let the pregnancy develop to the point of live birth. The pause is tied to that probability, not to a fixed point in the pregnancy. Once it is no longer probable that continued treatment would reach live birth, the pause ends and your Declaration applies as you wrote it. The exact wording is in the sources list below.

Changing or cancelling it

You can revoke your Declaration at any time and in any manner, regardless of your mental or physical condition. The revocation takes effect once you, or a witness to the revocation, communicates it to your attending physician, attending advanced practice registered nurse, or other health care provider. If you tell someone else instead, that revocation is not effective unless your attending physician or APRN is told before you need life-sustaining treatment. Once notified, the clinician has to put the revocation in your medical record.

That is the Declaration’s own rule. The separate durable health care power of attorney is not covered by it, and it is not covered by Montana’s Uniform Power of Attorney Act either: that Act says in terms that it does not apply to a power to make health care decisions. What governs instead are the two short sections that create the document. They tell you two things worth knowing. Until your attorney-in-fact has actual knowledge that you revoked, an act they take in good faith under the power still stands, so a revocation nobody has been told about protects nobody. And if a court ever appoints a guardian for you, that guardian has the same power to revoke or amend the health care power of attorney that you would have had.

Making sure it is found

Montana runs a state registry for exactly this document. The statute calls it the health care declaration registry and puts it with the Attorney General, who maintains it on a website of the Attorney General’s own and publishes it as the End-of-Life Registry. Filing your Declaration there is one more way it can be found, on top of the basics: give a copy to your designee, your physician, and the hospital you are most likely to use, and make sure your designee knows where the signed original is kept.

If you signed your Declaration somewhere else and are now in Montana, the state honors it as long as it was executed in a way substantially similar to Montana’s own rules and was valid under the law of the state where you signed it.

This is not a POLST

A POLST-style medical order is a different kind of document from your Declaration. A clinician signs it together with someone who is already facing serious illness, and it becomes a standing set of medical orders meant to travel with that person between hospital, nursing facility, home and ambulance. A Declaration, by contrast, is something you put in place ahead of time, for a future you cannot yet see. This page does not print a Montana program name for that order, because no source solid enough to publish confirmed one; if you are already under a clinician’s care, ask them what Montana calls it. Myend prepares the Declaration and can help you set up the separate power of attorney route too. It does not, and cannot, produce a POLST-style order, because that has to come from whoever is treating you.

What is different about Montana

Montana gives you two roads to the same designee, and asks for a notary on neither one.

Most states hand you one way to name the person who will speak for you. Montana hands you two. Name your designee inside the Declaration itself, in front of two witnesses, or route the same authority through a separate durable health care power of attorney that needs no witness and no notary at all. Both work. Neither borrows a rule from the other, and the page above keeps the two apart on purpose, because the biggest mistake a reader can make here is assuming they are signed alike.

The registry is its own quiet distinctive. Where several states park their declaration registry inside a health department, Montana’s health care declaration registry sits inside the Attorney General’s office. And Montana lets an advanced practice registered nurse, not only a physician, determine that a Declaration has become operative, which is worth knowing if the clinician who examines you is an APRN rather than an MD.

None of this makes Montana a hard state to plan in. It is a state that gives you more than one path to the same protection, and is plain about what each path does and does not ask of you.

Common questions

Sources and review