Montana § 72-5-444 - Petition To Authorize Proposed Action -- Substituted Judgment

§ 72-5-444. Petition To Authorize Proposed Action -- Substituted Judgment

Petition to authorize proposed action -- substituted judgment. (1) The conservator or other interested person may file a petition under 72-5-444 through 72-5-450 for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes: (a) benefiting the protected person or the estate; (b) minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the protected person; or (c) providing gifts for any purposes and to any charities, relatives (including the protected person's spouse, descendants, or ancestors), friends, or other objects of bounty as would be likely beneficiaries of gifts from the protected person. (2) The action proposed in the petition may include but is not limited to the following: (a) making gifts of principal or income, or both, of the estate, outright or in trust; (b) conveying or releasing the protected 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) exercising or releasing the protected person's powers as donee of a power of appointment; (d) entering into contracts; (e) creating for the benefit of the protected person or others revocable or irrevocable trusts of the property of the estate that may extend beyond the protected person's disability or life; (f) transferring to a trust created by the conservator or protected person any property unintentionally omitted from the trust; (g) exercising options of the protected person to purchase or exchange securities or other property; (h) exercising the rights of the protected person to elect benefit or payment options, to terminate or to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following: (i) life insurance policies, plans, or benefits; (ii) annuity policies, plans, or benefits; (iii) mutual fund and other dividend investment plans; or (iv) retirement, profit sharing, and employee welfare plans and benefits; (i) exercising the right of the protected person to disclaim any interest that may be disclaimed; (j) exercising the right of the protected person to revoke or modify a revocable trust or to surrender the right to revoke or modify a revocable trust. The court may not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust: (i) evidences an intent to reserve the right of revocation or modification exclusively to the protected person; (ii) provides expressly that a conservator may not revoke or modify the trust; or (iii) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust. (3) If an existing trust has been or is being amended, the order of the court may authorize the conservator to execute, after the trust amendment, a new "pour over" will or codicil that devises to the trustee of the amended trust other property of the protected person that had not previously been transferred to the trust.