2023 New York Laws › MHY - Mental Hygiene › Title E - General Provisions › Article 81 - Proceedings for Appointment of a Guardian for Personal Needs or Property Management › 81.44 - Proceedings Upon the Death of an Incapicitated 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.