Settle your Final Account as Guardian
Settling your Final account as Guardian is one of the Guardian’s final duties. In the paragraphs that follow, we will explain the process by which an individual who has been appointed Guardian, pursuant to Article 81 of the New York Mental Hygiene Law, can move to settle their final account as the Guardian.
When Do You Settle Your Final Account as Guardian?
As an Article 81 Guardian, your job is not complete until you are officially discharged by the Court that appointed you. The process by which you request to be discharged requires you, as Guardian, to petition the Court to request to be discharged. You may need to be discharged either when the incapacitated person (“IP”) is still living or after he/she has passed away. There are a number of reasons a Guardian may seek to settle his/her final account even when the IP is still living. Examples of when the guardian may ask to be discharged include: if the Guardian is no longer able to act because the funds have been depleted, if the Guardian is being relieved, permitted to resign, or being removed due to misconduct, or if there is no longer a need for a Guardian. If the IP passes away, although the Guardian’s authority ceases, the Guardian must nevertheless be formally discharged.
How do you Settle your Final Account as Guardian?
A Guardian must seek to settle his/her final account via a Petition/Motion to Settle Final Account. Click here for a sample Order to Show Cause to Settle the Account. Click here for a sample Petition for Settle the Final Account. Click here for a sample Final Report of Guardian. The Petition to Settle the Final Account as Guardian must be filed with the Court which appointed you as the Guardian. The Petition can be filed by Order to Show Cause. The Petition may also be filed by Notice of Motion. Each county will have their own requirements. You should consider calling the guardianship department of the County that appointed you to confirm whether you should file by Order to Show Cause or by Notice of Motion.
This paperwork is the same regardless of whether the IP is still alive or has passed away. However, in the case where the IP passed away, MHL (Mental Hygiene Law) § 81.44 provides several additional requirements. First, the Guardian must prepare, serve and file a Statement of Death. The Statement of Death must contain the caption and index number of the case and several details concerning the incapacitated person, such as his/her last place of residence, date and place of death, names and addresses of all interested parties as determined by the order and judgment appointing guardian, and the name(s) of the personal representative(s) (i.e. executor, trustee). The Statement of Death must be served on the Court Examiner, local department of social services, appointed or nominated personal representative, and the public administrator, by regular mail and certified mail, return receipt requested within 20 days of IP’s death. Thereafter, within 150 days, a Statement of Assets & Notice of Claim and a Final Account must be prepared and filed. The Statement of Assets & Notice of Claim must include a list of the assets of the IP and any known claims and must be served upon the personal representative or where there is no personal representative, upon the public administrator or chief fiscal officer. The statute provides that the Guardian transfer all guardianship property to the duly appointed representative of the estate or if none, the public administrator or chief fiscal officer, except for property retained to secure any known claim, lien or administrative costs. If there is a dispute as to the amount to be retained, the surrogate court having jurisdiction of the estate will make a determination. The Final Account will be similar to annual accounts. It is an account of the assets, income and disbursements throughout the time period being accounted for, often from the date of the last approved annual account.
What goes into the Petition to Settle your Final Account as Guardian?
As mentioned above, the Court proceeding to settle the final account will be commenced by either an Order to Show Cause and Petition or Notice of Motion and Affidavit or Affirmation in Support. This will depend on the County and sometimes on the Judge. Either way, the content and individuals to be served will be the same. The Petition itself should include information about when you were appointed, whether you have continued to maintain a bond, why you are seeking to be discharged and settle your account, and information about any significant events that occurred during your Guardianship. The Petition should also include the accounting itself. The accounting should be for the time period beginning with when your last report was approved through the date of resignation. If prior annual reports were approved, then you can include summary statements and copies of the Order. If no annual accounts were approved, then you will need to prepare an accounting from the inception of the guardianship through discharge.
Who is Entitled to receive a copy of the Petition to Settle your Final Account as Guardian?
Pursuant to New York Mental Hygiene Law Section 81.44, the papers will need to be served on:
- Everyone entitled to notice as indicated in the Order and Judgment appointing guardian,
- The Administrator/Executor of IP’s estate, if one has been appointed, or, if one has not been appointed, then upon the Public Administrator of the County where the incapacitated person resides,
- The Administrator/Director of facility if the IP resided in a facility at the time of death, and
- Mental Hygiene Legal Services, if the IP was residing in a Mental Hygiene facility. The papers must include a list of the IP’s assets at death, and the claims, debts or liens against the property and administrative fees.
If you are filing the Petition to Settle your Final Account as Guardian by Order to Show Cause, then you should wait for the Court to sign the Order to Show Cause before mailing the documents out to all of the Parties. If you are filing your Petition to Settle your Final Account as Guardian by Notice of Motion, then you should send copies to all of the interested parties and file your papers, with a copy of the Affidavit of Service to the Court. Do not forget your filing fee.
Where do you File your Petition to Settle your Final Account as Guardian?
The Petition/Motion to settle your final account will be filed with the guardianship department in the County that appointed you as Guardian.
What happens after the Petition is filed?
In cases where the IP passed away, some counties will require that the motion be filed, that the parties appear on a return date and then a Court attorney or clerk will review the Final Account (ex. Queens.) In other counties, for example Kings County, the Court will issue an Order directing the Final Account and appointing a Referee (often the Court Examiner) to review the Final Account. Upon serving the Final Account on the Referee and filing it with the Court, the Referee will review the Final Account and prepare a Report of Referee, which he/she will file with the Court and serve on the Guardian. Thereafter, the Guardian will proceed with his/her motion to settle his/her account and attach a copy of the Order, Referee’s Report, Final Account. In some counties, the motion will be reviewed on submission unless an objection is timely filed.
Once the return date passes, whether with an appearance or by submission, if there are no objections raised, the Order Settling Final Account will need to be signed by the Judge. In some counties, this proposed Order is submitted along with the Petition/Motion and in other counties, the guardian will either be directed to settle the proposed order on notice, or just submit the proposed Order. Sometimes, even in the same counties, the procedure may differ. Click here for a copy of a Proposed Order Settling the Final Account as Guardian.
Is that all?
Lest you think the process is over and you are done, the Guardian is not yet officially discharged. Once the Order Settling Final Account has been signed, it needs to be served on all the parties serve in the proceeding, and then the Guardian will need to follow all directives in the Order, including payment of commissions, legal fees, remaining bond premiums. Then, the Guardian will need to file an ex parte order discharging guardian with an affidavit in compliance showing that the Guardian followed the directives in the Order. This Order, once signed will be served on all parties including the Surety if there is one and then, the Guardian is finally done. Click here for a copy of the Ex Parte Order Discharging Guardian.
We can help you settle your account as guardian. We can also help you if you are thinking about compelling an accounting, examining the fiduciary, or objecting to an accounting.
Additional resources provided by the author. This post was guest written by Anne Littwin, Esq.
For more information, please contact probate and estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@rklawny.com
80 Maiden Lane
Suite 304
New York, NY 10038
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