Montana Code 72-5-421. Powers of court as to property and affairs of protected persons generally — temporary conservatorship
72-5-421. Powers of court as to property and affairs of protected persons generally — temporary conservatorship. The court has the following powers that may be exercised directly or through a conservator in respect to the estate and affairs of protected persons:
Terms Used In Montana Code 72-5-421
- Annuity: A periodic (usually annual) payment of a fixed sum of money for either the life of the recipient or for a fixed number of years. A series of payments under a contract from an insurance company, a trust company, or an individual. Annuity payments are made at regular intervals over a period of more than one full year.
- Donee: The recipient of a gift.
- Inter vivos: Transfer of property from one living person to another living person.
- Intestate: Dying without leaving a will.
- Joint tenancy: A form of property ownership in which two or more parties hold an undivided interest in the same property that was conveyed under the same instrument at the same time. A joint tenant can sell his (her) interest but not dispose of it by will. Upon the death of a joint tenant, his (her) undivided interest is distributed among the surviving joint tenants.
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- Preliminary hearing: A hearing where the judge decides whether there is enough evidence to make the defendant have a trial.
- Property: means real and personal property. See Montana Code 1-1-205
- Right of survivorship: The ownership rights that result in the acquisition of title to property by reason of having survived other co-owners.
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
- Tenancy by the entirety: A type of joint tenancy between husband and wife that is recognized in some States. Neither party can sever the joint tenancy relationship; when a spouse dies, the survivor acquires full title to the property.
- Testate: To die leaving a will.
- Trustee: A person or institution holding and administering property in trust.
(1)While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing and without notice to others, the court has power to preserve and apply the property of the person to be protected as may be required for the protected person’s benefit or the benefit of the protected person’s dependents. If the court finds that the welfare of the person requires immediate action, it may, with or without notice, appoint a temporary conservator for the person for a specified period not to exceed 6 months. The court may designate the authority of the temporary conservator, depending on the needs and circumstances of the protected person. The court may not invest a temporary conservator with more powers than are required by the circumstances necessitating the appointment. The order of appointment of a temporary conservator must state the specific powers and duties of the temporary conservator.
(2)After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor that are or might be necessary for the best interests of the minor, the minor’s family, and members of the minor’s household.
(3)After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and members of the person’s household, all the powers over the person’s estate and affairs that the person could exercise if present and not under disability, except the power to make a will. These powers include but are not limited to the power to:
(a)make gifts;
(b)convey or release the person’s contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety;
(c)exercise or release the person’s powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment;
(d)enter into contracts;
(e)create revocable or irrevocable trusts of property of the estate that may extend beyond the person’s disability or life;
(f)exercise options of the disabled person to purchase securities or other property;
(g)exercise the person’s rights to elect options and change beneficiaries under insurance and annuity policies and surrender the policies for their cash value;
(h)exercise the person’s right to an elective share in the estate of the person’s deceased spouse and renounce any interest by testate or intestate succession or by inter vivos transfer.
(4)The court may exercise or direct the exercise of its authority to exercise or release powers of appointment of which the protected person is donee, to renounce interests, to make gifts in trust or otherwise exceeding 20% of any year’s income of the estate, or to change beneficiaries under insurance and annuity policies, only if satisfied, after notice and hearing, that it is in the best interests of the protected person and that the protected person either is incapable of consenting or has consented to the proposed exercise of power.
(5)An order made pursuant to this section, determining that a basis for appointment of a conservator or other protective order exists, has no effect on the capacity of the protected person.