Guardianship Turnover Proceedings Under MHL § 81.43

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You can use Guardianship Turnover Proceedings to Recover Assets for Incapacitated New Yorkers

1. What Is a Guardianship Turnover Proceeding?

Mental Hygiene Law (“MHL”) § 81.43 lets a guardian ask the Supreme Court (Guardianship Part) that appointed them to discover and recover property being wrongfully withheld. The procedure mirrors an estate fiduciary’s SCPA 2103/2104 turnover.

2. Who May File—and Where?

  • Petitioner – The guardian of the property (or a temporary guardian if empowered).
  • Respondent(s) – Anyone who possesses, controls, or has information about the incapacitated person’s (“IP’s”) assets.
  • Court – A special proceeding brought by Order to Show Cause (“OSC”) in the guardianship part that retains continuing jurisdiction.

3. Procedural Roadmap

StepKey Points
Draft PetitionIdentify each asset; allege facts showing wrongful withholding or refusal to disclose.
Proposed OSCAsk the court to: (i) fix a return date; (ii) authorize subpoenas; (iii) restrain dissipation under MHL § 81.23; (iv) direct respondents to appear, testify, and produce documents.
Discovery & HearingCourts usually permit subpoenas and depositions before the evidentiary hearing. Guardian bears the initial burden; once a prima facie case is shown, the burden shifts to respondents.
ReliefTurnover of the property or its value, supplemental equitable directives, surcharge/interest, counsel fees, and—if necessary—civil contempt.

4. Serving the Signed Order to Show Cause in Guardianship Turnover Proceedings

  1. Certified Copy + Witness Fee Are Mandatory.
    MHL § 81.43 expressly requires service of a certified copy of the OSC and advance payment (or tender) of the statutory witness fee to every person directed to attend. Failure to tender the fee voids the duty to appear.
    • The statutory fee is $18 per day plus 23 ¢ per mile outside NYC (no mileage within the city).
  2. Follow Any Additional Directions in the OSC.
     CPLR 403(d) lets the judge set the time and manner of service; those instructions override the default rules.
  3. Default When the OSC Is Silent.
    • Method: Personal service under CPLR 308 (or BCL § 306 for entities).
    • Timing: At least eight days before the return date, unless the court shortens or extends the period.
  4. Who Gets Served?
    • Each named respondent.
    • Any additional parties specified by the OSC (e.g., IP, court evaluator, counsel).
  5. Proof of Service.
     File affidavits of service and receipts for tendered fees—usually no later than two business days before the return date (check the part’s local rules).
  6. Practical Tips.
    • Ask the clerk for certified copies when you pick up the signed OSC.
    • Staple the witness-fee check to the front of each service package.
    • Use process servers experienced with Article 81 matters; banks and brokers often reject uncertified orders or missing fees.
  • Burden of Proof: Preponderance that the asset belongs to the IP and is being withheld.
  • Defenses: Gift, joint tenancy, authority under a power of attorney, statute of limitations, laches, estoppel.
  • Joinder: Court may compel anyone claiming an adverse interest to appear and litigate ownership in one forum.

6. Recent Cases Illustrating § 81.43

CaseKey Take-Away
Matter of Mitchell, 2016 NY Misc LEXIS 2025 (Sup.Ct. Kings Cty. 2016) (Pesce, JSC) After an evidentiary hearing, the court determined that the Attorney In Fact / Health Care Proxy had exploited his position, had neglected the IP and had engaged in substantial financial self-dealing. The court voided the previously executed advance directives and awarded a money judgment against him on behalf of the IP.
Matter of Domenica P., 159 A.D.3d 954 (2d Dep’t 2018)§ 81.43 reaches professionals who aided misappropriation; fee award vacated where no benefit shown.
Matter of Saphier, 167 Misc.2d 130; 637 N.Y.S.2d 630 (Sup. Ct., NY Cty., 1995)(Lebedeff, J.)Court authorizes guardian to continue to pursue recovery of expensive violin, pursuant to MHL 81.43, pending the resolution of the final accounting

7. Strategy Pointers for Guardians

  1. Move Fast—delay invites dissipation and laches defenses.
  2. Build the Paper Trail first (bank, brokerage, deed records).
  3. Name Wrongdoers and Enablers (attorneys-in-fact, joint-account holders, transferees).
  4. Request Counsel Fees—courts often surcharge bad-faith respondents.
  5. Use Parallel Remedies (SCPA turnover, attachment) when an estate is also open.

8. Estate vs. Guardianship Turnover at a Glance

MHL § 81.43SCPA 2103/2104
FiduciaryGuardian of living IPExecutor/Administrator
CourtSupreme Court (Guardianship Part)Surrogate’s Court
PurposeRecover assets for living IPMarshal assets post-death
TimingDuring or after guardianship (wind-up)After fiduciary qualifies

9. Bottom Line in Guardianship Turnover Proceedings

Guardianship does not stop at managing known assets. MHL § 81.43 equips guardians with a powerful discovery-and-recovery tool—but only if you serve a certified copy of the OSC and the $18 witness fee exactly as the statute demands. Precision at this step preserves jurisdiction and keeps your hearing on track.

If you believe property has been siphoned away from someone under guardianship, act promptly. The attorneys at RK Law PC routinely litigate § 81.43 proceedings and can guide you from investigation through enforcement of the Guardianship Turnover Proceedings process.

This post is for educational purposes only and does not constitute legal advice. Prior results do not guarantee a similar outcome.

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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