S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6902

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 13, 2009
                               ___________

Introduced by M. of A. P. RIVERA, SCHROEDER -- read once and referred to
  the  Committee  on Mental Health, Mental Retardation and Developmental
  Disabilities

AN ACT to amend the mental hygiene law, in relation to the settlement of
  final guardianship reports

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The mental hygiene law is amended by adding a new section
81.45 to read as follows:
S 81.45 PROCEEDINGS UPON THE DEATH OF AN INCAPACITATED PERSON.
  (A) DEFINITIONS. WHEN USED IN THIS SECTION:
  (1) "STATEMENT OF DEATH" MEANS A STATEMENT, IN  WRITING  AND  ACKNOWL-
EDGED,  CONTAINING  THE  CAPTION  AND  INDEX  NUMBER OF THE GUARDIANSHIP
PROCEEDING, AND THE   NAME AND ADDRESS OF  THE  LAST  RESIDENCE  OF  THE
DECEASED  INCAPACITATED  PERSON,  THE   DATE AND PLACE OF DEATH, AND THE
NAMES AND LAST KNOWN ADDRESSES OF ALL PERSONS   ENTITLED  TO  NOTICE  OF
FURTHER  GUARDIANSHIP PROCEEDINGS PURSUANT TO PARAGRAPH THREE  OF SUBDI-
VISION (C) OF SECTION 81.16 OF  THIS  ARTICLE  INCLUDING  THE  NOMINATED
AND/OR  APPOINTED PERSONAL REPRESENTATIVE, IF ANY, OF THE DECEASED INCA-
PACITATED PERSON'S  ESTATE.
  (2) "PERSONAL REPRESENTATIVE" MEANS A FIDUCIARY AS DEFINED BY SUBDIVI-
SION TWENTY-ONE OF SECTION ONE HUNDRED THREE OF  THE  SURROGATE'S  COURT
PROCEDURE  ACT  TO    WHOM  LETTERS HAVE ISSUED AND WHO IS AUTHORIZED TO
MARSHAL THE ASSETS OF THE DECEDENT'S ESTATE.
  (3) "PUBLIC ADMINISTRATOR" MEANS  A  PUBLIC  ADMINISTRATOR  WITHIN  OR
WITHOUT THE CITY OF NEW YORK, AS ESTABLISHED BY ARTICLE ELEVEN OR TWELVE
OF THE SURROGATE'S  COURT PROCEDURE ACT.
  (4)  "CHIEF  FISCAL  OFFICER" MEANS A CHIEF FISCAL OFFICER OF A COUNTY
ELIGIBLE TO BE APPOINTED AN ADMINISTRATOR  PURSUANT  TO  SECTION  TWELVE
HUNDRED NINETEEN OF  THE SURROGATE'S COURT PROCEDURE ACT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06730-01-9

              

A. 6902                             2

  (5)  "STATEMENT  OF ASSETS AND NOTICE OF CLAIM" MEANS A WRITTEN STATE-
MENT UNDER OATH CONTAINING THE CAPTION AND INDEX NUMBER OF THE GUARDIAN-
SHIP PROCEEDING, THE NAME AND ADDRESS OF THE INCAPACITATED PERSON AT THE
TIME OF DEATH, A DESCRIPTION OF THE  NATURE  AND  APPROXIMATE  VALUE  OF
GUARDIANSHIP  PROPERTY  AT THE TIME OF THE INCAPACITATED PERSON'S DEATH,
AND IF CLAIM IS TO BE MADE FOR ADMINISTRATIVE COSTS, AN ITEMIZATION  AND
APPROXIMATE VALUE OF SUCH COSTS.
  (B)  SERVICE.  UNLESS  OTHERWISE  DIRECTED  BY  THE  COURT, ALL PAPERS
REQUIRED TO BE SERVED BY THIS SECTION SHALL BE SERVED BY CERTIFIED  MAIL
RETURN RECEIPT REQUESTED.
  (C) FILING STATEMENT OF DEATH; SERVICE; PROOF OF SERVICE. WITHIN TWEN-
TY DAYS OF THE DEATH OF AN INCAPACITATED PERSON, THE GUARDIAN SHALL:
  (1) SERVE A COPY OF THE STATEMENT OF DEATH UPON THE COURT EXAMINER AND
EITHER  THE  DULY  APPOINTED  PERSONAL  REPRESENTATIVE OF THE DECEDENT'S
ESTATE, OR, IF  NO PERSONAL REPRESENTATIVE HAS BEEN APPOINTED, UPON  THE
PERSONAL REPRESENTATIVE  NAMED IN THE DECEDENT'S WILL IF KNOWN, AND UPON
THE  PUBLIC  ADMINISTRATOR OR THE  CHIEF FISCAL OFFICER OF THE COUNTY IN
WHICH THE GUARDIAN WAS APPOINTED, AND
  (2) FILE THE ORIGINAL STATEMENT  OF  DEATH,  TOGETHER  WITH  PROOF  OF
SERVICE, UPON THE PERSONAL REPRESENTATIVE AND/OR PUBLIC ADMINISTRATOR OR
CHIEF  FISCAL  OFFICER,  AS  THE CASE MAY BE, WITH THE COURT THAT ISSUED
LETTERS OF GUARDIANSHIP.
  (D) DELIVERY OF GUARDIANSHIP PROPERTY. WITHIN SIXTY DAYS OF THE  DEATH
OF  THE INCAPACITATED PERSON, THE GUARDIAN SHALL SERVE UPON THE PERSONAL
REPRESENTATIVE OF THE DECEDENT'S ESTATE, OR WHERE THERE IS  NO  PERSONAL
REPRESENTATIVE, UPON THE PUBLIC ADMINISTRATOR OR CHIEF FISCAL OFFICER, A
STATEMENT  OF  ASSETS  AND  NOTICE  OF  CLAIM  AND,  EXCEPT FOR PROPERTY
RETAINED TO SECURE ADMINISTRATIVE COSTS OF THE GUARDIANSHIP PURSUANT  TO
SUBDIVISION (E) OF THIS SECTION, SHALL DELIVER ALL GUARDIANSHIP PROPERTY
TO:
  (1)  THE  DULY-APPOINTED PERSONAL REPRESENTATIVE OF THE DECEASED INCA-
PACITATED PERSON'S ESTATE, OR
  (2) THE PUBLIC ADMINISTRATOR OR CHIEF FISCAL OFFICER GIVEN  NOTICE  OF
THE  FILING OF THE STATEMENT OF DEATH, WHERE THERE IS NO PERSONAL REPRE-
SENTATIVE.
  (E) PROPERTY RETAINED BY GUARDIAN TO SECURE CLAIM  FOR  ADMINISTRATIVE
COSTS.  THE  GUARDIAN  MAY  RETAIN, PENDING THE SETTLEMENT OF HIS OR HER
FINAL REPORT,  GUARDIANSHIP PROPERTY EQUAL IN VALUE  TO  THE  CLAIM  FOR
ADMINISTRATIVE COSTS, UNLESS  OTHERWISE ORDERED BY THE COURT UPON MOTION
BY  THE GUARDIAN ON NOTICE TO THE  PERSON OR ENTITY TO WHOM GUARDIANSHIP
PROPERTY IS DELIVERABLE AND THE COURT  EXAMINER.
  (F) JUDICIAL SETTLEMENT OF GUARDIAN'S FINAL REPORT. WITHIN NINETY DAYS
OF THE INCAPACITATED PERSON'S DEATH, THE GUARDIAN SHALL FILE HIS OR  HER
FINAL  REPORT WITH  THE CLERK OF THE COURT OF THE COUNTY IN WHICH ANNUAL
REPORTS ARE FILED, AND  THEREUPON PROCEED TO JUDICIALLY SETTLE THE FINAL
REPORT UPON SUCH NOTICE AS REQUIRED  BY SUBDIVISION (C) OF SECTION 81.33
OF THIS ARTICLE, INCLUDING NOTICE TO THE PERSON OR  ENTITY TO  WHOM  THE
GUARDIANSHIP PROPERTY WAS DELIVERED. THERE SHALL BE NO  EXTENSION OF THE
TIME TO FILE A FINAL REPORT EXCEPT BY ORDER OF THE COURT.
  (G)  COMPULSORY  ACCOUNTING  AND  RELATED  RELIEF. UPON FAILURE OF THE
GUARDIAN TO COMPLY WITH SUBDIVISION (D) OR  (F)  OF  THIS  SECTION,  ANY
INTERESTED PERSON MAY FILE A PETITION TO COMPEL THE GUARDIAN TO ACCOUNT,
TO  SUSPEND  AND/OR  TO  REMOVE  THE GUARDIAN, AND TO TAKE AND STATE THE
GUARDIAN'S ACCOUNT.
  S 2. This act shall take effect immediately.