When Guardianship Leaves the Wallet Closed: Montana Supreme Court Confirms the Primacy of a Durable Power of Attorney in Selecting a Conservator
Commentary on Conservatorship of S.H.C., 2025 MT 151N (Sup. Ct. Mont. July 8, 2025)

1. Introduction

This memorandum decision from the Montana Supreme Court settles a narrowly focused yet practically significant dispute within the larger guardianship/conservatorship landscape: Does a durable power of attorney (DPOA) signed by an incapacitated adult on the same day a guardianship order issues remain valid for future conservatorship purposes?

The appellant, David Stanhope, originally obtained temporary guardianship and conservatorship over his father, S.H.C. After an evidentiary pivot, permanent co-guardians (Sharon “Sherry” and Randy Stanhope) were appointed without conservatorship powers, and the court explicitly left financial authority to either S.H.C. himself or a fiduciary of his choosing. That same day (December 5 2022) S.H.C.—with counsel—executed a DPOA naming his granddaughter, BreAnna Simpson, as attorney-in-fact and preferred future conservator. Two years later, Simpson invoked that nomination when Fidelity Investments refused to recognize her mere DPOA and demanded formal conservatorship papers.

David contested Simpson’s appointment, contending (i) the 2022 DPOA was invalid because S.H.C. was already deemed incapacitated and subject to guardianship; and (ii) the prior guardianship order already conferred financial control on the co-guardians, rendering a separate conservatorship duplicative. The District Court rejected both arguments and installed Simpson as conservator, subject to heightened accountings. The Supreme Court affirms.

2. Summary of the Judgment

• Affirmed. The District Court did not abuse its discretion in appointing BreAnna Simpson as conservator.
• DPOA validity upheld. Because the 2022 decree expressly preserved S.H.C.’s right to manage (or delegate) his finances, the subsequent DPOA was neither inconsistent with the guardianship nor facially invalid.
• Statutory priority enforced. Section 72-5-410(1)(b), MCA, gives nomination priority to “an individual fourteen years of age or older designated by the protected person,” and nothing in the record rebutted S.H.C.’s mental capacity to make that nomination in 2022.
• Scope of guardians versus conservators clarified. Section 72-5-321(2)(d)(ii) (guardian may receive funds for welfare support) does not convert a guardian into a conservator or supersede §72-5-427 powers; the 2022 decree intentionally withheld conservatorship authority.

3. Detailed Analysis

3.1 Precedents & Authorities Cited

• In re Guardianship & Conservatorship of A.M.M., 2015 MT 250, 380 Mont. 451 (citing Redies v. Cosner, 2002 MT 86)
  – Reiterates the “broad discretionary powers” vested in trial courts when selecting guardians/conservators.
  – Used by the Supreme Court to frame its deferential abuse-of-discretion review.
• Statutory Framework
  
  • § 72-5-321, MCA – Powers/duties of guardians.
  • § 72-5-404, MCA – Notice requirements for conservatorships (court cites mismatch to § 72-5-314 to show harmless error).
  • § 72-5-410, MCA – Priority order for conservator appointment.
  • § 72-5-427, MCA – Powers of a conservator (contrasted with § 72-5-321(2)(d)(ii)).
• Internal Operating Rules §I(3)(c)
  – Governs memorandum opinions; denotes the decision as non-citable precedent.

3.2 Court’s Legal Reasoning

1. Standard of Review: Choice of conservator is reviewed for abuse of discretion; mixed questions of law/fact (statutory interpretation) are reviewed de novo.
2. Scope of the 2022 Decree: The earlier decree:
   • Appointed co-guardians strictly for personal/medical matters.
   • Revoked David’s temporary conservatorship.
   • Explicitly preserved S.H.C.’s autonomy over financial affairs or his right to delegate via DPOA.
   Hence, when S.H.C. executed the DPOA that same day, he acted within the decree’s boundaries.
3. Capacity to Nominate: Under § 72-5-410(1)(b) the nominating capacity is a threshold inquiry (“sufficient mental capacity”); the District Court accepted uncontroverted testimony from counsel and physician reports that S.H.C. possessed adequate capacity in 2022.
4. Guardianship ≠ Conservatorship:
   • A guardian’s incidental power to “receive money” (§ 72-5-321(2)(d)(ii)) is limited to care and maintenance.
   • Full asset management, investment, and fiduciary duties reside with a conservator (§ 72-5-427).
   • Therefore, the absence of a conservator created a real legal vacuum, justifying Simpson’s petition.
5. Family Conflict Management: Given pronounced sibling mistrust, the District Court imposed extra-statutory monthly account disclosures. The Supreme Court characterized this as a permissible tailoring within the court’s broad equitable powers.

3.3 Anticipated Impact

Although designated “non-citable,” the opinion carries persuasive value in Montana and may influence:

• Trial strategy – Counsel will likely draft guardianship decrees with razor-sharp language about whether the ward retains financial autonomy, anticipating future conservatorship disputes.
• Financial institutions – The scenario illustrates that many brokerage firms demand court-issued conservatorship papers notwithstanding a DPOA; practitioners may seek “springing conservator” language or immediate conservatorship to avoid account freezes.
• Legislative clarification – The statutory overlap between § 72-5-321 and § 72-5-427 might prompt the Legislature to delineate when a guardian’s power ends and a conservator’s begins.
• Familial nominee priority – The case implicitly warns that courts will honor the ward’s nominee even over children/siblings absent clear unfitness.

4. Complex Concepts Simplified

• Guardian vs. Conservator
  – Guardian: Manages personal decisions—health care, housing, daily living.
  – Conservator: Manages financial and property matters—investments, bill-pay, asset protection.
• Durable Power of Attorney (DPOA)
  – A written authorization for another (agent) to handle financial/legal matters, remaining effective even if the principal becomes incapacitated.
• Statutory Priority (§ 72-5-410)
  – A ranked list of who gets first dibs at being conservator; the ward’s own nominee usually outranks family unless the court finds incapacity or unfitness.
• Memorandum Opinion / Non-citable Case
  – Under the Supreme Court’s internal rules, certain decisions are issued without full precedential force; they resolve the dispute but cannot be quoted as binding authority in future cases.

5. Conclusion

The Montana Supreme Court’s decision in Conservatorship of S.H.C. distinguishes the powers of a guardian from those of a conservator while confirming that a durable power of attorney executed in accordance with a guardian-only decree remains valid and controlling for later conservatorship selection. The ruling reaffirms:

1. The ward’s autonomy—when expressly preserved by court order—includes the right to nominate a future conservator via DPOA.
2. Guardianship powers over “money for support” do not morph a guardian into a de facto conservator.
3. Trial courts maintain broad latitude to craft oversight mechanisms (e.g., monthly statements) that balance family friction with the ward’s best interests.

While non-precedential, the opinion provides a roadmap for practitioners navigating the delicate intersection of guardianship decrees, durable powers of attorney, and the eventual need for formal conservatorship. Drafting clarity and early strategic decisions about financial authority can spare families costly litigation and protect the dignity—and expressed wishes—of vulnerable adults.