New York Guardians Have Obligations After the Death of the Incapacitated Person

A Guardian appointed under Article 81 of the New York Mental Hygiene Law (“MHL”) has many duties and responsibilities. As discussed in earlier posts in the New York Probate Lawyer Blog, an appointment can be for a Property Management Guardian and for a Personal Needs Guardian. Property Management guardian powers are set forth in MHL Section 81.21 and the personal needs powers are found in MHL Section 81.22.

Generally, when an incapacitated person dies, the authority of a Guardian ends. However, the administration responsibilities of a Guardian may continue in many forms depending upon the circumstances of the Guardianship.   MHL Section 81.44 entitled “Proceedings upon the death of incapacitated person” sets out a number of rules. According to the statute a “statement of death” must be sent by the Guardian to the Court Examiner and to the estate personal representative. This representative would be an Executor or Administrator. Additionally, the Guardian must file a final account with the Court within 150 days after the death of the incapacitated person.

With regard to the property of the incapacitated person, the Guardian can pay the funeral bills pursuant to MHL Section 81.21(14). Also, MHL Section 81.21(19) states that a Guardian can “pay bills after the death of the incapacitated person. . . .” There may be occasions where there is a dispute as to whom is to receive funds from a Guardianship upon its termination. While the decedent’s estate may be the ultimate place where the balance of the funds are to be paid, there may be competing claims by creditors and others relating to circumstances that occurred during the Guardianship while the incapacitated was still living. These disputes are typically determined in the final accounting proceeding that is filed by the Guardian. In a recent case entitled In re Shannon v. Westchester County Department of Senior Services, decided by the Appellate Division, 1st Department on June 17, 2014, there were competing claims for assets owned by a deceased incapacitated person. One claim was asserted by a nursing home where the decedent had resided and the other claim was from Westchester County for providing Medicaid benefits. The Court ultimately found that the nursing home should be paid since its claim accrued and was asserted before the Medicaid claim.

I have represented many Guardians in connection with their appointment and also the filing of their annual and final accounts. While there may be complex and confusing issues where an incapacitated person dies, the advice and guidance of an experienced New York Guardianship lawyer can be helpful in resolving these problems.

New York Guardianship Attorney Jules Martin Haas, Esq. has been representing clients in New York Guardianship Proceedings, throughout the past 30 years in New York, including Queens and Nassau Counties. If you or someone you know is involved with or has questions about a New York Guardianship matter, please contact me at (212) 355-2575 or email:, for an initial consultation.

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