What Does a New York Guardian Do When an Incapacitated Person Dies

A New York Guardian appointed pursuant to Article 81 of the Mental Hygiene Law (MHL) has many duties and responsibilities. As a Guardian for Property Management (MHL 81.21), the Guardian must collect and protect the assets of an Incapacitated Person (IP) and pay all necessary bills. The obligations may be extensive depending upon the nature and value of the IP’s property, including defending or prosecuting lawsuits.

A Personal Needs Guardian must make various decisions regarding the IP’s welfare which may involve determining the IP’s residence and providing for medical and health related care. In most cases the same person will be the Guardian for personal needs and property management. This will make it easy to decide about issues such as medical care and pay for the services. Pursuant to the Order and Judgement appointing a Guardian, the term of a Guardianship may be indefinite. It may last for a short time or many years depending upon circumstances concerning the IP. There can come a time when the IP’s condition improves and the Guardianship can be terminated. MHL 81.36 entitled “Discharge or modification of powers of guardian”, sets forth the procedure for the discharge of a Guardian. However, there typically reaches a point when the IP dies. At this juncture, the Guardianship, for all intents and purposes, comes to an end in a global sense. Even though the IP has passed away, the Guardian still has a number of tasks and actions that must be undertaken and completed before there is a total finality to the Guardian’s appointment.

MHL Section 81.44 entitled “Proceedings upon the death of an incapacitated person,” provides the basic steps that need to be taken upon the IP’s demise. The initial task, according to paragraph (c)1 of the statute, is that within 20 days after the death of the IP, the Guardian must serve a “Statement of death” on various parties designated under the law, including the Court Examiner and the decedent’s personal representative which would be an Executor or Administrator. The Statement needs to include certain information such as the name and address of the IP and the place and date of death. The original Statement must be filed with the Court.

In many Courts, following the filing of the Statement, the Court will issue an Order directing the Guardian to file a Final Accounting to settle his affairs as Guardian. MHL 81.44 in paragraph (d) sets forth that the Guardian shall provide the personal representative, within 150 days of death, a statement of the IP’s assets and notice of claim. Also, except for funds needed to satisfy various costs or claims, the Guardianship property should be turned over to the decedent’s estate.

Additionally, the final report of Guardian should be filed within the 150-day period pursuant to paragraph (f).

The Guardian should follow the above time frames, particularly any Order by the Court to file a Final Account of proceedings which may include most of the information required by the statute. The Final Account includes various financial schedules detailing the assets and income that the Guardian received, the expenses and claims that the Guardian paid, and the balance of assets that remain in the possession of the Guardian for final distribution. The Guardian may also have a claim for statutory commissions.

Each individual Court may have its own procedures for the Final Account settlement. Often the accounting is prepared and filed with a Notice of Motion setting forth a Court date. These papers are sent to all of the interested parties who then have an opportunity to approve or disapprove of the Guardian’s actions. If there are any Objections to the Guardian’s account, the Court will determine the validity of the Objections at an Accounting Hearing. The Guardian may request to be reimbursed for various expenses and receive statutory commissions for serving as a Guardian. A request can also be made for the payment of legal and accounting fees.

In most Guardianship cases where the IP owned assets, the Guardian may have been required by the Court at the time of appointment to obtain a Surety Bond. I assist my clients in obtaining a Bond. As part of the Guardianship accounting, the Guardian will be released from further liability and the final Court Order will terminate the need for the Surety Bond. All Bond premiums must be paid.

Becoming the Guardian for a relative or friend is a tremendous responsibility. Guardians must file formal annual reports with the Court. The Guardian also must take an educational course given by the Court to qualify for appointment. During the past 40 years I have represented many individuals in Guardianship matters as petitioners, cross-petitioners and in connection with accounting matters and other issues. Call me now for a free confidential review if you have a question or issue regarding a New York Guardianship. We offer reasonable and flexible fee arrangements and personal representation.