N.Y. Mental Hygiene Law § 81.44: Proceedings upon the death of an incapacitated person

§ 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.