§ 81.44 Proceedings upon the death of an incapacitated person.

(a) When used in this section:

1. "Statement of death" means a statement, in writing and
acknowledged, 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
subdivision (c) of section 81.16 of this article including the nominated
and/or appointed personal representative, if any, of the deceased
incapacitated person's estate.

2. "Personal representative" means a fiduciary as defined by
subdivision twenty-one of section 103 of the surrogate's court procedure
act to whom letters have been 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 articles eleven and
twelve of the surrogate's court procedure act, or the 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. The role of the public administrator under this section is that of
a stake holder or escrowee only, and the public administrator shall not,
by virtue of this section, have a substantive role in administering the
estate.

4. "Statement of assets and notice of claim" means a written statement
under oath containing the caption and index number of the guardianship
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;
with the approximate amount of any claims, debts or liens against the
guardianship property, including but not limited to medicaid liens, tax
liens and administrative costs, with an itemization and approximate
amount of such costs and claims or liens.

(b) Unless otherwise directed by the court, all papers required to be
served by this section shall be served by regular mail and by certified
mail return receipt requested.

(c) Within twenty days of the death of an incapacitated person, the
guardian shall:

1. serve a copy of the statement of death upon the court examiner, the
duly appointed personal representative of the decedent's estate, or, if
no personal representative has been appointed, then upon the personal
representative named in the decedent's will or any trust instrument, if
known, upon the local department of social services and upon the public
administrator of 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 which issued letters
of guardianship.

(d) Within one hundred fifty 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 any known
claim, lien or 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
incapacitated 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
representative.

3. any dispute as to the size of the property retained shall be
determined by the surrogate court having jurisdiction of the estate.

(e) 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, the guardian may retain, pending
the settlement of the guardian's final account, guardianship property
equal in value to the claim for administrative costs, liens and debts.

(f) Within one hundred fifty 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) Upon failure of the guardian to comply with subdivisions (d) or
(f) of this section, any person entitled to notice of this proceeding
may file a petition to compel the guardian to account, to suspend and/or
remove the guardian, and to take and state the guardian's account.