Mutual Wills or Last Will and Testaments for Man and Woman living together, not Married with Minor Children
Note: This summary is not intended to be an all inclusive discussion
of the law of wills in Montana, but does contain basic and other provisions.
This summary does not discuss hand written wills or the situation where
the testator cannot sign his or her name.
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE MONTANA CODE ANNOTATED
DECLARATION
(50-9-103 through 50-9-206)
Section 50-9-103: Declaration relating to use of life-sustaining treatment -- designee.
(1) An individual of sound mind and 18 or more years of age may execute at any time a declaration governing the withholding or withdrawal of life-sustaining treatment. The declarant may designate another individual of sound mind and 18 or more years of age to make decisions governing the withholding or withdrawal of life-sustaining treatment. The declaration must be signed by the declarant, or another at the declarant's direction, and witnessed by two individuals. A physician or health care provider may presume, in the absence of actual notice to the contrary, that the declaration complies with this chapter and is valid. See Form.
(4) If the designation of an attorney-in-fact pursuant to 72-5-501 and 72-5-502, or the judicial appointment of an individual, contains written authorization to make decisions regarding the withholding or withdrawal of life-sustaining treatment, that designation or appointment constitutes, for the purposes of this part, a declaration designating another individual to act for the declarant pursuant to subsection (1).
(5) A physician or other health care provider who is furnished a copy of the declaration shall make it a part of the declarant's medical record and, if unwilling to comply with the declaration, promptly so advise the declarant and any individual designated to act for the declarant.
Section 50-9-104:
(1) A declarant may revoke a declaration at any time and in any manner, without regard to mental or physical condition. A revocation is effective upon its communication to the attending physician or other health care provider by the declarant or a witness to the revocation. A health care provider or emergency medical services personnel witnessing a revocation shall act upon the revocation and shall communicate the revocation to the attending physician at the earliest opportunity. A revocation communicated to a person other than the attending physician, emergency medical services personnel, or a health care provider is not effective unless the attending physician is informed of it before the qualified patient is in need of life-sustaining treatment.
(2) The attending physician or other health care provider shall make the revocation a part of the declarant's medical record.
Section 50-9-105:
(1) A declaration becomes operative when:
(a) it is communicated to the attending physician; and
(b) the declarant is determined by the attending physician to be in a terminal condition and no longer able to make decisions regarding administration of life-sustaining treatment.
(2) When the declaration becomes operative, the attending physician and other health care providers shall act in accordance with its provisions and with the instructions of a designee under 50-9-103(1) or comply with the transfer requirements of 50-9-203.
Section 50-9-106: Consent by others to withholding or withdrawal of treatment.
(1) If a written consent to the withholding or withdrawal of the treatment, witnessed by two individuals, is given to the attending physician, the attending physician may withhold or withdraw life-sustaining treatment from an individual who:
(a) has been determined by the attending physician to be in a terminal condition and no longer able to make decisions regarding administration of life-sustaining treatment; and
(b) has no effective declaration.
(2) The authority to consent or to withhold consent under subsection (1) may be exercised by the following individuals, in order of priority:
(a) the spouse of the individual;
(b) an adult child of the individual or, if there is more than one adult child, a majority of the adult children who are reasonably available for consultation;
(c) the parents of the individual;
(d) an adult sibling of the individual or, if there is more than one adult sibling, a majority of the adult siblings who are reasonably available for consultation; or
(e) the nearest other adult relative of the individual by blood or adoption who is reasonably available for consultation.
(3) If a class entitled to decide whether to consent is not reasonably available for consultation and competent to decide or if it declines to decide, the next class is authorized to decide. However, an equal division in a class does not authorize the next class to decide.
(4) A decision to grant or withhold consent must be made in good faith. A consent is not valid if it conflicts with the expressed intention of the individual.
(5) A decision of the attending physician acting in good faith that a consent is valid or invalid is conclusive.
(6) Life-sustaining treatment cannot be withheld or withdrawn pursuant to this section from an individual known to the attending physician to be pregnant so long as it is probable that the fetus will develop to the point of live birth with continued application of life-sustaining treatment.
Section 50-9-107: When health care provider may presume validity of declaration.
In the absence of knowledge to the contrary, a physician or other health care provider may assume that a declaration complies with this chapter and is valid.
Section 50-9-108: Effect of previous declaration.
An instrument executed before October 1, 1991, that substantially complies with 50-9-103(1) is effective under this chapter.
Section 50-9-111: Recognition of declarations executed in other states.
A declaration executed in a manner substantially similar to 50-9-103 in another state and in compliance with the law of that state is effective for purposes of this chapter.
Section 50-9-201: Recording determination of terminal condition and content of declaration.
Upon determining that a declarant is in a terminal condition, the attending physician who knows of a declaration shall record that determination and the terms of the declaration in the declarant's medical record.
Section 50-9-202: Treatment of qualified patients.
(1) A qualified patient may make decisions regarding life-sustaining treatment so long as the patient is able to do so.
(2) This chapter does not affect the responsibility of the attending physician or other health care provider to provide treatment, including nutrition and hydration, for a patient's comfort care or alleviation of pain.
(3) Life-sustaining treatment cannot be withheld or withdrawn pursuant to a declaration from an individual known to the attending physician to be pregnant so long as it is probable that the fetus will develop to the point of live birth with continued application of life-sustaining treatment.
Section 50-9-203: Transfer of patients.
An attending physician or other health care provider who is unwilling to comply with this chapter shall take all reasonable steps as promptly as practicable to transfer care of the declarant to another physician or health care provider who is willing to do so. If the policies of a health care facility preclude compliance with the declaration of a qualified patient under this chapter, that facility shall take all reasonable steps to transfer the patient to a facility in which the provisions of this chapter can be carried out.
Section 50-9-204:
(1) In the absence of actual notice of the revocation of a declaration, the following, while acting in accordance with the requirements of this chapter, are not subject to civil or criminal liability or guilty of unprofessional conduct:
(a) a physician who causes the withholding or withdrawal of life-sustaining treatment from a qualified patient;
(b) a person who participates in the withholding or withdrawal of life-sustaining treatment under the direction or with the authorization of a physician;
(c) emergency medical services personnel who cause or participate in the withholding or withdrawal of life-sustaining treatment under the direction of or with the authorization of a physician or who on receipt of reliable documentation follow a living will protocol;
(d) emergency medical services personnel who proceed to provide life-sustaining treatment to a qualified patient pursuant to a revocation communicated to them; and
(e) a health care facility in which withholding or withdrawal occurs.
(2) A physician or other health care provider whose action under this chapter is in accord with reasonable medical standards is not subject to civil or criminal liability or discipline for unprofessional conduct with respect to that decision.
(3) A physician or other health care provider whose decision about the validity of consent under 50-9-106 is made in good faith is not subject to criminal or civil liability or discipline for unprofessional conduct with respect to that decision.
(4) An individual designated pursuant to 50-9-103(1) or an individual authorized to consent pursuant to 50-9-106, whose decision is made or consent is given in good faith pursuant to this chapter, is not subject to criminal or civil liability or discipline for unprofessional conduct with respect to that decision.
Section 50-9-205:
(1) Death resulting from the withholding or withdrawal of life-sustaining treatment in accordance with this chapter does not constitute, for any purpose, a suicide or homicide.
(2) The making of a declaration pursuant to 50-9-103 does not affect the sale, procurement, or issuance of any policy of life insurance or annuity, nor does it affect, impair, or modify the terms of an existing policy of life insurance. A policy of life insurance is not legally impaired or invalidated by the withholding or withdrawal of life-sustaining treatment from an insured, notwithstanding any term of the policy to the contrary.
(3) A person may not prohibit or require the execution of a declaration as a condition for being insured for or receiving health care services.
(4) This chapter creates no presumption concerning the intention of an individual who has revoked or has not executed a declaration with respect to the use, withholding, or withdrawal of life-sustaining treatment in the event of a terminal condition.
(5) This chapter does not affect the right of a patient to make decisions regarding use of life-sustaining treatment, so long as the patient is able to do so, or impair or supersede a right or responsibility that any person has to effect the withholding or withdrawal of medical care.
(6) This chapter does not require a physician or other health care provider to take action contrary to reasonable medical standards.
(7) This chapter does not condone, authorize, or approve mercy killing or euthanasia.
Section 50-9-206:
(1) A physician or other health care provider who willfully fails to transfer the care of a patient in accordance with 50-9-203 is guilty of a misdemeanor punishable by a fine not to exceed $500 or imprisonment in the county jail for a term not to exceed 1 year, or both.
(2) A physician who willfully fails to record the determination of terminal condition or the terms of a declaration in accordance with 50-9-201 is guilty of a misdemeanor punishable by a fine not to exceed $500 or imprisonment in the county jail for a term not to exceed 1 year, or both.
(3) An individual who purposely conceals, cancels, defaces, or obliterates the declaration of another without the declarant's consent or who falsifies or forges a revocation of the declaration of another is guilty of a misdemeanor punishable by a fine not to exceed $500 or imprisonment in the county jail for a term not to exceed 1 year, or both.
(4) An individual who falsifies or forges the declaration of another individual or purposely conceals or withholds personal knowledge of a revocation as provided in 50-9-104 is guilty of a misdemeanor punishable by a fine not to exceed $500 or imprisonment in the county jail for a term not to exceed 1 year, or both.
(5) A person who requires or prohibits the execution of a declaration as a condition for being insured for or receiving health care service is guilty of a misdemeanor punishable by a fine not to exceed $500 or imprisonment in the county jail for a term not to exceed 1 year, or both.
(6) A person who coerces or fraudulently induces an individual to execute a declaration is guilty of a misdemeanor punishable by a fine not to exceed $500 or imprisonment in the county jail for a term not to exceed 1 year, or both.
(7) The penalties provided in this section do not displace any sanction applicable under other law.
