Mont. Code § 72-5-447

Current through the 2023 Regular Session

Section 72-5-447 - Circumstances to be considered in determining whether to authorize or require proposed action

In determining whether to authorize or require a proposed action under 72-5-444 through 72-5-450, the court shall take into consideration all of the relevant circumstances, which may include but are not limited to the following:

(1) whether the protected person has legal capacity for the proposed transaction and, if not, the probability of the protected person's recovery of legal capacity;

(2) the past donative declarations, practices, and conduct of the protected person;

(3) the traits of the protected person;

(4) the relationship and intimacy of the prospective donees with the protected person, their standards of living, and the extent to which they would be natural objects of the protected person's bounty by any objective test based on the relationship, intimacy, and standards of living;

(5) the wishes of the protected person;

(6) any known estate plan of the protected person, including but not limited to:

(a) the protected person's will;

(b) any trust of which the protected person is the settlor or beneficiary;

(c) any power of appointment created by or exercisable by the protected person; and

(d) any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at the protected person's death to another or others that the protected person may have originated;

(7) the manner in which the estate would devolve upon the protected person's death, giving consideration to the age and the mental and physical condition of the protected person, the prospective devisees or heirs of the protected person, and the prospective donees;

(8) the value, liquidity, and productiveness of the estate;

(9) the minimization of current or prospective income, estate, inheritance, or other taxes or expenses of administration;

(10) changes of tax laws and other laws that would likely have motivated the protected person to alter the protected person's estate plan;

(11) the likelihood from all the circumstances that the protected person as a reasonably prudent person would take the proposed action if the protected person had the capacity to do so;

(12) whether any beneficiary is the spouse of the protected person;

(13) whether a beneficiary has committed physical abuse, neglect, false imprisonment, or financial abuse against the protected person after the protected person was substantially unable to manage his or her financial resources or resist fraud or undue influence and whether the protected person's disability persisted throughout the time of the hearing on the proposed action; or

(14) the mandate of 72-5-446 that if the proposed action is taken, the remaining assets of the estate will be adequate to provide for the needs of the protected person and for the support, maintenance and education of those legally entitled to receive such from the protected person.

§ 72-5-447, MCA

Added by Laws 2013, Ch. 264, Sec. 136, eff. 10/1/2013.