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Overview of an Article 81 Guardianship

Who can be a guardian?

A guardian can be any person who is eighteen years or older, a corporation, or a public agency, including a local department of social services as a potential guardian.

When will the court appoint a Guardian?

The court may appoint a guardian for a person if the court determines:

  1. That the appointment is necessary to provide for the personal needs or to manage the property and financial affairs of the person, or both. This person with then be deemed incapacitated – abbreviated as IP; OR
  2. The person agrees to the appointment or that the person is incapacitated. This person will be deemed to be a Person in Need of a Guardian – abbreviated as PING.

Petition and Hearing

The process of becoming a guardian starts by filling out a petition with an Order to Show Cause (OTSC).
A Petition may be brought:

  1. In the county where the person resides; or
  2. In the county where the person is physically present

The court will then sign the order to show cause, appoint a court evaluator, appoint an attorney for the Alleged Incapacitated Person (AIP), and set a hearing date.

A court evaluator is a qualified person under the law, who investigates the allegations in the Petition to assist the Court in making its determinations in a guardianship proceeding. The court evaluator functions in a quasi-judicial capacity. The Court Evaluator will read the petition, interview the AIP, and explain to the person why the court is considering a guardianship for him or her. Thereafter they will write a report, interview interested parties, and testify at the hearing. The court evaluator’s duties are usually concluded after the hearing.

If at the hearing the court the determines by clear and convincing evidence that a guardian is necessary to protect the AIP, the judge will appoint a guardian, who could be the petitioner, an attorney from the NYS part 36 list, public agency, or corporation.

Duties

Once appointed guardian, what are the duties involved?
The guardian shall, among other things:

  1. Exercise only the powers the guardian is authorized to exercise;
  2. Exercise the utmost care and diligence when acting on behalf of the incapacitated person;
  3. Exhibit the utmost degree of trust, loyalty, and fidelity in relation to the incapacitated person;
  4. File an initial report (a/k/a 90 day report) due 90 days after the commission is issued and thereafter annual reports due by May 31st of the following year;
  5. Visit the incapacitated person not less than four times a year or more frequently as specified in the court order.

As a guardian there are fiduciary duties which include:

  1. Having control of all banking accounts
  2. Having control of any securities such as stocks and bonds
  3. Keeping all receipts of disbursements made throughout the year
  4. Making sure you have all pension stubs, social security letters, and payroll stubs. Keeping track of the income in the given year
  5. Visiting with the incapacitated person at least four (4) times a year

There are different types of guardians –A guardian can be a Personal Needs Guardian, a Property Management Guardian or both.
Personal Needs Guardian: The judge has given you the power and duty to make personal decisions for your ward in just those areas the judge decided your ward needs. And because the law says that wards must be given as much physical freedom and freedom of choice as possible, you are required to involve your ward as much as possible when decisions must be made.
Property Guardian: The judge has given you the power to manage the income and assets of your ward. Taking control of your ward’s property is called marshaling the assets.

Bond, Designation, Consent to Act, Commission to Guardian, and Training Course

The commission provides the power for the guardian to act. It is what most financials institutions will require to marshal assets of the IP.
Before the clerk of the court will issue a commission, the guardian must file their designation, consent to act and if ordered by the judge – their bond.

In many cases the guardian may be required to file a bond, unless it is waived.

Some available bonding companies are, but not limited to:

Pedersen & Sons Surety Bond Agency, Inc.
15 Maiden Lane Suite #800
New York, NY 10038
Tel: 212-227-7277
Fax: 212-233-1405
www.courtbondnow.com

Jasper Surety Agency, LLC.
310 Old Country Road, Suite 202
Garden City, NY 11530
Tel: 516-742-8815
Fax: 516-742-8819
www.jaspersurety.com

Liberty Mutual
450 Plymouth Road
Suite 400
Plymouth Meeting, Pennsylvania 19462
610-832-8240
www.libertymutualgroup.com/omapps/ContentServer?pagename=LMGroup/Views/LMG&ft=3&fid=1138372453710

Where to file all, in person or by mail:

If a bond is required -
Supreme Court, Bronx County
Attn: Guardianship Dpt.Room 6M-11
851 Grand Concourse
Bronx, NY 10451
(718) 618-1330

If the bonding requirement is waived:
Bronx County Clerk’s Office
Attn: Guardianships Room 118
851 Grand Concourse
Bronx, NY 10451
(718) 618-1330

As a guardian you are required to take a guardian training class. It can be taken online or at an in person training session.

The online course is about two hours and can be accessed here:

https://www.nycourts.gov/ip/gan/training.shtml

Initial Report (M.H.L. § 81.30)

The Initial Report is a verified statement to the Court that you have completed the course, filed your bond, received your commission, and contains a description of the date, time and place of your visits with the Incapacitated Person. It also sets forth the provisions for medical or related services, as well as social and personal services and a true and full account of all of the Incapacitated Person's assets that you have marshaled. The Mental Hygiene Law requires the guardian to file an initial report with the court within 90 days of receiving their commission.

When is the Initial report due? 90 days from the date your commission was issued.
What does it cover? It covers all activities from the original Order and Judgment until the date of the report.

What to include?

  1. Include all of the requested information on the standard form and all true bank statements (online transaction sheets will not be accepted) with canceled checks from the date of the original Order and Judgment until the date of the report. This includes any accounts that were closed and the guardianship account. Bank records are to be sent to the Court Examiner only;
  2. A copy of the Order and Judgment appointing you as guardian;
  3. A copy of the commission executed by the county clerk;
  4. A copy of your bond and training course certificate is to be sent as well;
  5. The notarized initial report.

Where to send?

The ORIGINALreport is to be filed with the court at:
Supreme Court, Bronx County
Attn: Guardianship Dpt. Room 6M-11
851 Grand Concourse
Bronx, NY 10451
(718) 618-1330

A COPY is to be filed with your court examiner at:
Schneider & Garrastegui PLLC
Attn: Court Examiners
135 Pinelawn Road – Suite 250s,
Melville, NY 11747
(631) 756-6006

Annual Report(M.H.L. § 81.31)

The Annual Accounting is a verified and sworn statement, due each year by May 31st.It operates independently from the initial report, therefore there will be dates of overlap. This accounting describes the condition of the Incapacitated Person, the measures you have taken to provide for the personal needs and a true and full account of the assets marshaled, income collected and disbursements you have made. The annual account is done in a full calendar year; it must begin January 1 and end December 31 of the previous year of filing.
When is the annual report due? May 31st of the following year. Extensions cannot be granted pursuant to the M.H.L.
What does it cover? It covers all activities from January 1st to December 31st of the previous year. (i.e. a 2015 annual report due by May 31, 2016, will cover activities from January 1, 2015 to December 31,2015)
Are there exceptions? Yes, if you received your commission between the months of October to December you will not have to file annual report for the previous year. (i.e. If the commission was issued in November 2015, a 2015 Annual Report is not due and your 2016 annual report will cover November 2015 until December 2016)
What to include?

  1. Include all of the requested information on the standard form and all true bank statements (online transaction sheets will not be accepted) with canceled checks from the January 1st to December 31st of the previous year Bankrecords are to be sent to the Court Examiner only.
  2. A copy of interim orders, if any;
  3. The notarized annual report.

Where to send?

The ORIGINAL report is to be filed with the court at:
Supreme Court, Bronx County
Attn: Guardianship Dpt. Room 6M-11
851 Grand Concourse
Bronx, NY 10451
(718) 618-1330

A COPY is to be filed with your court examiner at:
Schneider & Garrastegui PLLC
Attn: Court Examiners
135 Pinelawn Road – Suite 250s,
Melville, NY 11747
(631) 756-6006

Testimony – Examination by the Court Examiner

Once your annual report is reviewed by a court examiner, a question and answer based testimony will be sent to you for your review and signature before a notary. Although, it may seem repetitive the testimony expands upon your initial report and is a sworn statement to the court. For your convenience, most of the answer have already been completed for you. Do not change any of the figures without first speaking to the court examiner, doing so will delay the approval process.
The testimony is to be sent back to the court examiner and he or she will file it with the court along with his or her review and approval of same.

Termination of a guardianship

Final Account, Statement of Death, Notice of Claim (M.H.L. § 81.44)

Most of the time a guardianship is terminated because of the death of the IP, the assets of the IP have become depleted, the guardian can no longer act (lost capacity, death, removed by the court etc…), or the IP has regained capacity to act on their own behalf.

In the case of the death of the IP, a statement of death must be filed with the court within 20 days of death, and statement of Assets, Notice of claim and Final Accounting must be filed with the court. The final account is a full report of all your activities as guardian from the date of appointment until the date of the report. It is quite complex and we strongly recommend retaining counsel to prepare the report.

Where to send?

The ORIGINAL is to be filed with the court at:
Supreme Court, Bronx County
Attn: Guardianship Dpt. Room 6M-11
851 Grand Concourse
Bronx, NY 10451
(718) 618-1330

A COPY is to be filed with your court examiner at:
Schneider & Garrastegui PLLC
Attn: Court Examiners
135 Pinelawn Road – 250s,
Melville, NY 11747
631-756-6006

  • INITIAL REPORT
  • ANNUAL REPORT OF GUARDIAN
  • ANNUAL REPORT OF PERSONAL NEEDS GUARDIAN
  • AFFIDAVIT OF SERVICE BY MAIL
  • VISIT VERIFICATION FORM
  • STATEMENT OF DEATH OF INCAPACITATED PERSON
  • STATEMENT OF ASSETS AND NOTICE OF CLAIM
  • IDENTIFYING REAL PROPERTY
  • NY redaction form
  • Ex parte application for secondary appointment

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