How to Resign, Be Discharged, or Terminate an Article 81 Guardianship Under the Mental Hygiene Law

Quick Take: You cannot simply stop acting. You must go back to the court that appointed you, ask to resign and/or to have the guardianship discharged or modified, give notice to required parties, and file a final report/accounting. Different procedures apply if (1) the Incapacitated Person (IP) has improved, (2) the IP has died, or (3) you personally can no longer serve. RK Law PC regularly guides lay and professional guardians through this process across New York State.

At‑a‑Glance Decision Guide

Situation	What You File	Key Statute(s)	Extra Steps
IP improved / no longer needs all powers	Petition/Motion to Discharge or Modify	MHL §81.36	Hearing on notice; burden shifts depending on relief sought
You want to resign, IP still needs guardian	Motion (often Order to Show Cause) to Resign & Appoint Successor	MHL §81.37; §81.38	Propose successor if none; continue acting until court order
Court wants you out for cause	Removal proceeding (not voluntary)	MHL §81.35	Possible surcharge; successor appointed
IP has died	Statement of Death; deliver assets; Final Report/Accounting	MHL §81.44; §81.33	20‑day & 150‑day deadlines; serve required parties

FAQ

1. I Don’t Want To Be A Guardian Anymore In New York. Can I Just Stop Acting As Guardian?

No. A guardian’s authority comes from a court Order & Judgment; only the court can relieve you. Stopping without court permission risks contempt, removal for cause, personal liability, and delay in releasing your bond. Formal discharge (or resignation approved by the court) is required, and you must file a final accounting.

2. What Are The Different Ways My Guardianship Can End Or Change?

Discharge/Modification: Court ends or narrows your powers when the IP improves, dies, or circumstances change so a guardian is no longer needed. (MHL §81.36.)
Resignation: You ask the court to let you step down; court may suspend powers and appoint a successor. (MHL §81.37; §81.38.)
Removal: Someone moves to oust you for misconduct, failure to comply, or other cause; not voluntary. (MHL §81.35.)
These paths often converge in practice because the court will usually also require a final report/accounting (MHL §81.33).

3. When Will The Court Discharge (Terminate) Or Modify An Article 81 Guardianship?

Under MHL §81.36, the court must discharge the guardian or modify powers if: (1) the IP can now manage some or all personal or property needs; (2) the IP has become unable to manage areas outside the guardian’s current authority, suggesting different relief is needed; (3) the IP has died; or (4) “for some other reason” the appointment is no longer necessary or powers should be changed due to changed circumstances. A noticed hearing is generally required, but the court may dispense with a hearing for good cause in limited circumstances.

4. I Don’t Want To Be A Guardian Anymore In New York. Who Can Ask The Court To Discharge Or Modify The Guardianship?

The guardian, the incapacitated person, or any person entitled to commence an Article 81 proceeding (for example, certain relatives or interested parties) may apply under MHL §81.36(b). Practical guides confirm that interested persons—including the IP—may seek to end or change a guardianship where circumstances warrant.

5. I Don’t Want To Be A Guardian Anymore In New York. How Do I Ask To Resign If The Ip Still Needs A Guardian?

File a motion (many counties prefer an Order to Show Cause) requesting permission to resign, approval of your final or interim accounting, and appointment of a successor guardian (or confirmation of the standby guardian, if designated). The court may suspend your powers and install a successor; you remain responsible until the court signs an order. The NY Courts guidance encourages proposing a successor when you move to resign; if none is suggested, the court will choose.

6. What If The Court Hasn’t Yet Appointed A Successor And I Can’t Keep Serving?

If your resignation would leave the IP without coverage, the court can appoint an interim guardian for up to 90 days (or until a final accounting and successor appointment) under MHL §81.38(a). Where a standby guardian was named in the original Order & Judgment, that person may step in automatically (subject to confirmation) upon your resignation, per MHL §81.38(b).

7. What Happens If The Incapacitated Person Has Improved And No Longer Needs All (Or Any) Guardianship Powers?

Bring a petition/motion to discharge or modify under MHL §81.36. Evidence can include updated medical/functional assessments, service provider affidavits, and proof of support systems in place. If the requested relief would restore rights to the IP or end the guardianship, the burden of proof is on the person objecting; if relief would further restrict the IP, the burden is on the movant. Courts typically hold a noticed hearing; the IP can demand a jury trial on factual capacity issues.

8. What If The Incapacitated Person Has Died?

Death automatically triggers a change in status but does not automatically close the file: you must follow MHL §81.44. Within 20 days of death you serve and file a Statement of Death on specified parties (court examiner, personal representative or—if none—the nominated rep and the Public Administrator/local DSS). Within 150 days you must (a) serve a Statement of Assets & Notice of Claim, (b) deliver guardianship property to the estate’s personal representative or Public Administrator (you may retain funds to cover known claims/costs with court approval), and (c) file your final report and move to judicially settle it. No extensions absent court order.

9. Do I Have To File A Final Report/Accounting Even If I Resign While The IP Is Alive?

Yes. When a guardian dies, is removed, suspended, discharged, or allowed to resign, the court orders a final report (MHL §81.33[b]). Courts and practice guides stress that formal discharge requires judicial settlement of that report/accounting. County procedures vary (e.g., some use a Referee/Court Examiner review; others handle on submission), so check local rules.

10. What Papers Go Into A Typical Final Accounting Package?

Although formats vary by county, expect to submit: (1) Petition/Motion to Settle Final Account and Discharge Guardian; (2) Proposed Order to Show Cause (or Notice of Motion); (3) Final Report/Accounting itemizing receipts, disbursements, and remaining assets; (4) supporting affidavits (bond, taxes, fees); (5) if IP deceased, Statement of Death and Statement of Assets & Notice of Claim under §81.44; (6) proof of service on required parties; and (7) proposed Order settling account and discharging guardian/bond. Sample forms are available through NY Courts, and RK Law has template packets.

11. What If I’m Overwhelmed, Moved Out Of State, Or Have A Conflict Of Interest?

Personal hardship, relocation, health issues, or conflicts may justify a motion to resign. The court can accept your resignation and appoint an interim or successor guardian; in urgent cases you can seek immediate relief by Order to Show Cause requesting suspension pending hearing. Continue to safeguard the IP’s person/property until relieved.

12. What If Others Think I’m Doing A Bad Job And Want Me Out?

That’s a removal proceeding, not a voluntary resignation. Any interested person (including the IP) can move to remove a guardian for failure to comply with court orders, misconduct, or “any other cause which to the court shall appear just.” (MHL §81.35.) Practice commentary notes that courts scrutinize evidence of neglect, financial mismanagement, or hostility that harms the IP; removal can lead to surcharge and fee shifting.

13. What Notice Is Required When I Move To Resign, Discharge, Or Terminate?

Notice tracks the Article 81 appointment notice list: persons entitled under MHL §81.16(c)(3) (typically the IP, close family/distributees, facility, etc.). Additional notice requirements apply upon death under §81.44 (personal representative, Public Administrator, local DSS). Court guidance also instructs serving the court examiner and anyone named in the Order & Judgment. Always review your appointing order—it may expand the service list.

14. I Don’t Want To Be A Guardian Anymore In New York. Is There A Hearing? Do I Have To Appear?

MHL §81.36(c) calls for a hearing on notice to decide discharge/modification, though the court may dispense with a hearing for good cause in limited cases (e.g., non‑controversial accountings). The IP (or counsel) can demand a jury trial on disputed capacity issues. In practice, uncontested resignation/accounting motions are often decided on submissions; contested matters require your appearance and testimony.

15. I Don’t Want To Be A Guardian Anymore In New York. Who Bears The Burden Of Proof In A Termination/Modification Proceeding?
If the requested relief would terminate the guardianship or restore rights to the IP, the objector bears the burden. If the relief would further limit the IP’s powers, the movant bears the burden. (MHL §81.36[d].)

16. I Don’t Want To Be A Guardian Anymore In New York. How Long Does It Take To Be Relieved?

Timeframes vary by county, docket congestion, and whether the matter is contested. A straightforward resignation with a clean accounting can be resolved in a few months; contested termination petitions or accountings can take longer, especially if discovery is needed. Statutory death‑related deadlines (20 & 150 days) set minimum filing timing but not the court’s calendar for approval. Practical guides and recent commentary stress starting early and communicating with the guardianship part clerk.

17. If I Don’t Want to Be a Guardian Anymore, What Happens To My Bond?

Your surety bond typically remains in force until the court signs an order settling your final account and discharging you; the order will also direct bond exoneration/release. Delays in filing your final report can keep the bond open (and premiums accruing). Practice materials emphasize timely accounting to close out the bond.

18. I Don’t Want to Be a Guardian Anymore. Do I Get Compensated When I Step Down?

Guardian compensation is governed by the appointing order and MHL provisions on guardian compensation (see generally MHL §81.28; not reproduced in full here). Courts typically fix compensation when settling accountings; amounts may be prorated to your period of service. Supporting schedules should be included in your final account.

19. I Don’t Want to Be a Guardian Anymore. I Was Guardian Of Both The Person And Property. Can I Resign From One Role But Not The Other?

Yes. Article 81 guardianships are tailored. You can seek modification so that, for example, you remain guardian of the person but not property (or vice‑versa), or ask that another be appointed to share or assume the unwanted role. The court has broad authority to modify powers to the “least restrictive” level needed. (MHL §81.36; NY Courts practice guidance.)

20. I Don’t Want To Be A Guardian Anymore In New York. When Should I Speak With A Guardianship Attorney?

Early—ideally before you stop providing services or when you see capacity changes, burnout, or conflicts developing. Counsel can help you evaluate whether to seek modification vs. resignation, assemble supporting records, comply with notice rules, prepare your accounting, and avoid surcharge exposure.

RK Law PC represents family and professional guardians statewide; contact us to discuss strategy.

Practical Filing Checklist

Use this short checklist to track your resignation/termination application. Adapt to local county rules.

☐ Review appointing Order & Judgment for service list, bond terms, standby guardian designation.
☐ Gather 90‑day, annual, and most recent account data; reconcile all balances.
☐ Decide procedural vehicle: Order to Show Cause (urgent/temporary relief) vs. Notice of Motion (standard). Confirm with part clerk.
☐ Draft Petition/Motion: relief requested (resign; discharge; modify powers; settle final account; exonerate bond).
☐ Attach proposed successor (or note standby guardian) & proposed Order.
☐ Prepare Final Report/Accounting schedules; attach bank statements & receipts.
☐ If IP deceased: prepare Statement of Death (20‑day service) & Statement of Assets & Notice of Claim (150‑day service) per §81.44.
☐ Serve all required parties (MHL §81.16(c)(3); §81.44).
☐ File proofs of service; calendar return date/hearing.
☐ Attend hearing (if required) or submit proposed order on consent.
☐ Follow up for signed Order; circulate; close accounts; release bond.

(For samples, see NY Courts guardianship forms and RK Law’s Final Account resources.)

Short Glossary

IP (Incapacitated Person): Adult for whom the guardian was appointed under Article 81.
Order & Judgment: Court document appointing guardian, defining powers, notice list, bond, reporting duties.
Final Report/Accounting: Detailed financial & status report submitted when guardian seeks discharge/resignation/removal.
Statement of Death / Statement of Assets & Notice of Claim: Death‑triggered filings under MHL §81.44 that start the wind‑down process.

Disclaimer

This FAQ provides general educational information on the topic of “I Don’t Want to Be a Guardian Anymore” and is not legal advice. Guardianship procedures vary by county and by the specific terms of the appointing order. Consult counsel before taking action. Attorney Advertising. 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

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