Compel an Article 81 Guardian to File an Accounting in NYC

Compel an Article 81 Guardian to File an Accounting in NYC

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You Can Compel an Article 81 Guardian to File an Accounting in NYC!

Guardians appointed under New York Mental Hygiene Law (“MHL”) Article 81 enjoy great power—but they also owe strict fiduciary duties, including the duty to account. When a guardian drags their feet, family members, interested parties, or a court examiner can petition the Supreme Court’s Guardianship (Mental Hygiene) Part to force compliance. Below is a practical, SEO‑oriented guide for New York City petitioners.

Table of Contents for How to Compel an Article 81 Guardian to File an Accounting in NYC

  1. When Is a Guardianship Accounting Required?
  2. Who Can Demand an Accounting?
  3. Statutory & Case‑Law Authority
  4. Step‑by‑Step Procedure in NYC
  5. What Happens at the Hearing?
  6. Consequences of Non‑Compliance
  7. Recent New York Cases
  8. Practice Pointers for NYC Guardianship Courts
  9. FAQs

1. When Is a Guardianship Accounting Required and How to Compel an Article 81 Guardian to File an Accounting in NYC

  • Initial report — due 90 days after the commission issues.
  • Annual report — due every May or at any other time upon motion or order of the court.
  • Interim or special accounting — may be ordered whenever the court deems it “in the best interest of the incapacitated person” (IP).
  • Final accounting — must be filed within 150 days of the IP’s death or removal. Failure may delay discharge and bond release.

2. Who Can Demand an Accounting?

  1. The Incapacitated Person (through counsel).
  2. Family members or other interested parties with a legitimate stake in the IP’s welfare or assets.
  3. The Court Examiner (automatic if the annual report is late).
  4. Successor or co‑guardians who need records to comply with their own duties.
  5. The Court, sua sponte—New York judges regularly issue orders to show cause when deadlines are missed.

3. Statutory & Case‑Law Authority on How to Compel an Article 81 Guardian to File an Accounting in NYC

SourceTake‑away
MHL § 81.31Gives the court power to direct an accounting “at any other time” on motion or order. 
Matter of Kent, 188 Misc 2d 509 (N.Y. Sup. Ct. 2001)Sets out the four‑factor test to compel a fiduciary accounting: (1) fiduciary relationship; (2) entrustment of money/property; (3) demand & refusal; (4) no other adequate remedy. 
Matter of Shannon, 25 NY3d 345 (2015)Clarifies retention of assets and duties surrounding a final account after the IP’s death. 

4. Step‑by‑Step Procedure in NYC

  1. Serve a written demand on the guardian requesting the overdue accounting and giving a short deadline (usually 10–15 days).
  2. Gather evidence: prior annual reports, bond documents, any red flags (unpaid bills, missing funds).
  3. Draft an Order to Show Cause & Petition citing MHL § 81.31, the Kent factors, and any local Part rules (each county’s Mental Hygiene Part publishes rules on filing format).
  4. File in the Supreme Court, Guardianship Part of the county where the guardianship was created (e.g., Part 36 in Manhattan, Part 76 in Brooklyn).
  5. Serve all parties: guardian, IP (if alive), court examiner, surety, and any interested relatives.
  6. Appear on the return date—expect the judge to set a firm deadline for the guardian and may require production of underlying records.
  7. Monitor compliance; if the guardian misses the court‑ordered deadline, move for contempt or removal under MHL § 81.35 and § 81.43.

5. What Happens at the Hearing?

  • Guardian’s explanation—they may request more time or contest standing.
  • Court directives—deadlines, possible appointment of a referee or CPA to review the account, and directives regarding bond adjustments.
  • Potential interim relief—freeze on accounts, production of financial statements, or partial disclosure of records to protect the IP.

6. Consequences of Non‑Compliance

SanctionStatutory Basis
Contempt fines or civil confinementJudiciary Law § 753(A)(3)
Suspension or removal of guardianMHL § 81.35, § 81.43
Surcharge & bond forfeitureMHL § 81.20, Surety Bond
Attorney’s fees to petitionerCourt’s inherent equity powers; see Kent.

7. Recent New York Cases

  • Matter of Muser, 2025 N.Y. App. Div. (1st Dept.) — affirmed sanctions against a guardian who delayed filing a final account for four years, awarding legal fees to the estate and citing Shannon for allowable expenses.
  • Matter of Garcia, 2007 N.Y. Sup. Ct. — granted a guardian’s petition to compel an accounting from a trustee; court relied on Kent to emphasize no wrongdoing need be alleged.

8. Practice Pointers Re: How to Compel an Article 81 Guardian to File an Accounting in NYC

  • Calendaring: Each Mental Hygiene Part publishes compliance calendars in February and June—missing one triggers automatic OSCs.
  • Court Examiners: Cultivate a cooperative relationship; many will join your petition, giving it more weight.
  • Proof of Mailing: NYC Parts require certified mail plus e‑file service on NYSCEF where the guardianship is e‑filed.
  • Local Resources: The Bronx Guardianship Help Center on the 6M floor offers pro‑se guidance. (New York State Unified Court System)
  • Leverage Technology: Attach Excel summaries or QuickBooks exports to highlight unexplained withdrawals.

9. FAQs to Compel an Article 81 Guardian to File an Accounting

Q: How fast can I get relief?

If your petition is complete, NYC judges routinely sign an OSC within 3–5 days; the initial return date is usually 30 days out.

Q: Do I need proof the guardian stole money?

No. Under Kent, you only need to show the four accounting factors—no allegation of wrongdoing is required. 

Q: What if the guardian resigned?

The former guardian still must account; seek an order compelling both the accounting and turnover of records to the successor.

Q: Can I recover legal fees?

Yes—courts often surcharge the guardian personally when delay is unreasonable.

For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:

Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com

Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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This page is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.


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