72-5-302. Testamentary appointment of guardian for incapacitated person -- when effective -- priorities. (1) The parent of an unmarried incapacitated person may appoint by will or other writing signed by the parent and attested by at least two witnesses a guardian of the incapacitated person. If both parents are dead or the surviving parent is adjudged incapacitated, a parental appointment becomes effective when, after having given 7 days' prior written notice of intention to do so to the incapacitated person and to the person having care of the person or to the nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated or, in the case of a nontestamentary nominating instrument, in the court at the place where the incapacitated person resides or is present. The notice must state that the appointment may be terminated by filing a written objection in the court, as provided by 72-5-304. If both parents are dead, an effective appointment by the parent who died later has priority.

(2) The spouse of a married incapacitated person may appoint by will or other writing signed by the spouse and attested by at least two witnesses a guardian of the incapacitated person. The appointment becomes effective when, after having given 7 days' prior written notice of intention to do so to the incapacitated person and to the person having care of the incapacitated person or to the nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated or, in the case of nontestamentary nominating instrument, in the court at the place where the incapacitated person resides or is present. The notice must state that the appointment may be terminated by filing a written objection in the court, as provided by 72-5-304. An effective appointment by a spouse has priority over an appointment by a parent.

History: En. 91A-5-301 by Sec. 1, Ch. 365, L. 1974; R.C.M. 1947, 91A-5-301(1), (2); amd. Sec. 18, Ch. 582, L. 1989.