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
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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.