Overview of Guardianship 2 Materials Condensed from NYCLA Certified Guardian Training Program held December 13, 2011 and chaired by Clifford A.

Transcription

1 Overview of Guardianship 2 Materials Condensed from NYCLA Certified Guardian Training Program held December 13, 2011 and chaired by Clifford A. Meirowitz, Law Offices of Clifford A. Meirowitz PLLC

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3 1 Alfreida B. Kenny, Esq. th 11 Park Place, 10 Fl. New York, New York (212( CONSIDERATIONS FOR COUNSEL FOR THE ALLEGED INCAPACITATED PERSON IN AN ARTICLE 81 GUARDIANSHIP PROCEEDING. November 30, 2010 I. THE ROLE OF COUNSEL A lawyer is to abide by a client s decisions concerning the objectives of representation and, as required by Rule 1.4 shall consult with the client as to the means by which they are to be pursued. 22 NYCRR, Part 1200, Rule 1.3. It is the role of counsel to advocate the wishes of the client even if counsel believes that the client s judgment is not good, what the client wants is not in the best interest of the client, or what the client wants could prove to be detrimental to the client over the course of time. It is the role of counsel to counsel client, make recommendations to the client, attempt to persuade the client to pursue the recommendations that counsel has made to the client. Ultimately, the client makes the decision and counsel must follow the directions of the client. Poor judgment and bad decisions are not tantamount to diminished capacity. If the client has diminished capacity, counsel must determine whether the client has sufficient capacity to direct counsel. 22 NYCRR, Part 1200, Rule 1.14 states, When a client s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.

4 2 II. RETAINED COUNSEL Initial Meeting with the AIP and Subsequent meetings. Introduce yourself to the AIP and explain why you are meeting with the AIP. Inform the AIP who asked you to meet with the AIP and why. Explain to the AIP the petition, who is involved, the petitioner, as well as other family members and/or friends, and how these people are involved in the Article 81 guardianship proceeding. Meet with the AIP frequently in your office, as well as at the AIP s residence. Meet with the AIP alone, and at other times with those whom the AIP chooses. Explain to the AIP that it sometimes is important to meet with the AIP alone and not in the presence of others to protect lawyer-client privilege, as well as to ascertain what the AIP recalls without the assistance of others. Counsel also should meet alone with the AIP separately to elicit information that the AIP may not be comfortable relating to counsel if others are present, including those individuals whom the AIP fears or those individuals who may be exerting undue influence upon the AIP. On each occasion that counsel meets with the AIP, review with the AIP what was discussed when counsel last met with the AIP or spoke with the AIP during a telephone discussion. Make the best possible assessment of the AIP s abilities or lack thereof regarding short-term memory and long-term memory. It is important to meet with the AIP frequently to avoid the AIP forgetting counsel s name, who counsel is, why counsel is meeting with the AIP, and the fact that the AIP has retained counsel. Objectants, including the court evaluator, may suspect that socalled retained counsel was not retained by the AIP because the AIP allegedly does not have the capacity to enter into a contract.

5 3 If the court evaluator or others advise the Court of the possibility that the AIP does not have capacity to retain counsel, the Court generally will conduct a hearing solely for the purpose of determining whether the AIP had or has capacity to retain counsel. Mental Hyg. Law 81.10(a) provides that the AIP has the right to choose and engage legal counsel. The Court is to determine whether retained counsel has been chosen freely and independently by the alleged incapacitated person. Counsel risks that the Court will determine that counsel was not freely and independently chosen by the AIP. In such an event, counsel cannot be paid from the funds of the AIP if a guardian is appointed. Counsel should determine, if possible, prior to be being retained whether the AIP can direct counsel in counsel s representation of the AIP. If retained counsel concludes that the AIP cannot direct counsel, then counsel cannot represent the AIP, and thereby advocate for the wishes of the AIP. However, counsel can represent family members, such as spouse and children, and by representing those individuals proceed to work for the best interest of the AIP. 1 If counsel is retained and paid by family members to represent the AIP, the Court must make a determination that the AIP freely and independently has chosen counsel to represent the AIP. A determination that the AIP acted freely becomes more difficult for the Court to make when the facts likely will show that prior to the commencement of the proceeding, the AIP did not know counsel, counsel is a friend of a member of the AIP s family, or counsel represents a member of the AIP s family. It will become increasingly difficult, but not impossible, for the Court to make a 1 Although difficult, counsel who represents a family member of an AIP may be able to fashion least restrictive alternatives to guardianship. If counsel represents family members, counsel should advise the Court whom counsel represents. It is my experience that in most cases, the Court will allow counsel for family members to participate in the hearing and to work toward a settlement. The Court will understand without anyone making a statement that counsel has determined that the AIP cannot direct counsel but that counsel will work for the best interests of the AIP. However, if counsel s actions demonstrate to the Court that counsel is in fact representing the interests of the family member rather than the AIP, the Court will not be so inviting to counsel.

6 determination that the AIP acted freely if family members or others are paying the legal fees incurred in connection with counsel representing the AIP. 4 If counsel is retained by family members to represent the AIP, there likely will be a conflict between what the family members want counsel to do and what the AIP wants counsel to do. Counsel s loyalty and duties are owed to the AIP and not to those paying the bills. If family members are paying the legal fees, the retainer agreement should expressly state that notwithstanding that the family members are paying the legal fees, counsel is bound to represent the AIP in accordance with the wishes of, and the instructions given by, the AIP and as directed by the AIP, even if such representation is contrary to the wishes of the payer of the bills. The family members may want counsel to represent the AIP in a fashion that is in the best interest of the AIP, while the AIP may want counsel to represent the AIP in a manner that is not in the best interest of the AIP but is what the AIP wishes. For example, counsel may be able to resolve the Article 81 proceeding with a settlement by having his client agree to relocate to an assisted-living facility and give a power of attorney to #1 Son. The members of the AIP s family agree that this is the perfect solution; it avoids the appointment of a guardian, #1 Son, who is an accountant, will handle Mom s financial affairs, the legal fees will be reduced because there will not be a long and drawn-out hearing, and Mom will not have to listen to the testimony of friends and family members when they relate to the Court how she is forgetful and wanders if she is not accompanied by someone. Mom says to all of them, Go to hell. I am not leaving my residence of 50 years. I am not forgetful; I am quite capable of handling my own affairs, and I don t need my children handling my money, even if #1 Son is an accountant. I can handle my own money better than he can handle my money. The AIP directs counsel not to settle, to represent her at the hearing, and argue to the Court that she does not have any functional limitations that impair her ability to provide for her personal or property management and that she does not need a guardian of any sort. Clearly, counsel must advocate

7 what his client, the AIP, asks. No doubt, no matter how many times counsel explains to the family members counsel s ethical obligations, the family members will not understand why counsel will advocate for a position that counsel knows is not in the best interests of his client, the AIP. 5 When the bills are paid by one other than the client, ethical issues are likely to arise. III. COURT-APPOINTED COUNSEL Court-appointed, as retained counsel, must abide by the wishes and directions of the client. If court-appointed counsel believes that the capacity of the AIP is so diminished that the AIP cannot reason or direct counsel, counsel should consider whether it may be more appropriate for the Court to appoint a guardian ad litem. However, if counsel is appointed because Article 81 mandates the appointment of counsel, counsel may be compelled to only represent the AIP in connection with protecting the due process rights and other rights of the AIP, rather than advocating a frivolous position. 22 NYCRR, Part 1200, Rule IV. PREPARATORY WORK PRIOR TO THE HEARING Communicating with the Court Evaluator Contact the Court Evaluator as soon as possible after counsel believes that counsel understands the facts and the AIP s position. Give the Court Evaluator the facts that will help your client. Counsel also should give to the Court Evaluator facts that are not so helpful that counsel knows that the Court Evaluator will learn from other sources. Elicit from the Court Evaluator what the Court Evaluator has learned from others. Ask the Court Evaluator when the Court Evaluator would like to meet with the AIP. Prepare the AIP for the meeting with, and interview by, the Court Evaluator.

8 6 Be present at the meeting between the AIP and the Court Evaluator. If your client, the AIP, is forgetful, find a way to handle the forgetfulness without interfering with the Court Evaluator s interview of the AIP. You may want to tell the AIP not to worry if she cannot remember everything and advise the AIP to tell the Court Evaluator when she cannot remember and that whatever it is that she has forgotten, she is sure that she will remember before the Court Evaluator leaves. Do not interfere with the Court Evaluator interviewing the AIP. Be prepared for the Court Evaluator to ask the AIP tough questions, which sometimes may seem to be insensitive. Counsel s interference with the Court Evaluator could result in doing more damage to the AIP than allowing the AIP to answer the Court Evaluator s questions, even if incorrectly. Begin early on discussing with the Court Evaluator why your client does not need a guardian and/or the least restrictive alternatives to a guardianship. As you learn facts that will assist your client, give those facts to the Court Evaluator. If you have documents that demonstrate that an individual who seeks to be a guardian is unfit, furnish those documents to the Court Evaluator. For example, Son #2 was the agent under a power of attorney and you have bank statements showing that he used Mom s money to pay his bookie in New Jersey. You also have receipts showing that Son #2 used Mom s money to purchase expensive jewelry for Son #2's mistress. Deliver copies of these documents to the Court Evaluator. Provide the Court Evaluator, if appropriate, with the AIP s family history, information regarding family discord, and information regarding the assets of the AIP. Investigate the Facts. After having met with the AIP, at least once, meet with or speak with friends or family members whom counsel believes will give the facts. Do not rely solely upon what the AIP tells you. Talk with family

9 members, home aides, friends, and religious leaders. It is from these sources that counsel will learn many of the weaknesses of the AIP s position. 7 When counsel believes that counsel has the facts, counsel should engage the AIP in a straight-forward discussion of the facts that likely will be presented at a hearing. Listen to the AIP s responses and if the responses are not complete or rational, let the AIP know that the AIP s responses will not serve her well at a hearing. Do not sugarcoat what the AIP likely will encounter during the Article 81 proceeding, including, but not limited to, family members lying. If counsel believes that the petitioner likely will meet petitioner s burden by proving by clear and convincing evidence that (1) the AIP has functional limitations (2) those functional limitations impair the AIP s ability to provide for her personal needs and property management, (3) the AIP lacks understanding or appreciation of the nature and consequences of the AIP s functional limitations, and (4) the appointment of a guardian is necessary to prevent harm to the AIP, counsel should advise the AIP of counsel s beliefs and the basis of counsel s beliefs. After having had a straightforward discussion with the AIP, counsel should make every attempt to persuade the AIP to accept a settlement that would provide the least restrictive alternatives to a guardianship. V. THE HEARING Work toward having the hearing as soon as possible. If your client is an elderly person, the longer the hearing is delayed, the more likely the AIP will lose his/her ability to remember. It is likely that with delay, the AIP will become progressively worse. Up to the date of the hearing, counsel would have had frequent visits with the AIP, to be assured that the AIP remembers who counsel is, remembers what the Court proceeding concerns, and how the AIP is to conduct himself/herself in the Court. If counsel has told the AIP what to expect during the hearing, that oftentimes reduces some of the AIP s nervousness. In most instances, the AIP should not testify. However, if the AIP does

10 8 not suffer from cognitive limitations, can explain her thoughts well, understands her limitations, can explain how she has addressed her limitations or intends to address her limitations, does not get flustered, then the AIP may be a decent witness. If the AIP rambles, do not permit the AIP to testify. If the AIP is to testify, you must prepare the AIP for cross-examination. In addition to cross-examination, the presiding Justice is likely to ask the AIP a number of questions. If counsel discerns that the AIP is intimidated by family members or home care attendants, or friends who have cared for the AIP, ask the Court to permit the AIP to testify, on the record, in camera. Object to any medical facts or evidence that are protected by physicianpatient privilege or was not obtained in accordance with Mental Hyg. Law 81.09(d) Jury trials are rare in Article 81 proceedings. The AIP has a right to a jury trial. If the AIP intends to exercise the AIP s right to a jury trial the demand for a jury trial must be made on or before the return date designated in the order to show cause. Mental Hyg. Law 81.11(f). Failure to timely demand a jury trial will be deemed a waiver of the right to trial by jury. A jury trial may be difficult for the AIP. Counsel must assess the AIP s stamina, emotional and psychological we being, ability to hear unpleasant facts, ability to sit still and attentive for long periods of time, ability to maintain the appropriate demeanor throughout the trial as the jury observes every movement that the AIP makes. In most cases, it generally is best to avoid a full hearing. Counsel should use all of counsel s resources to devise creative solutions that would be the least restrictive alternatives to guardianship. S:\abk\Documents\GUARDIAN\Publications\Counsel of the AIP - November 30, 2010.wpd

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33 CERTIFIED GUARDIAN, COURT EVALUATOR AND COUNSEL FOR ALLEGED INCAPACITATED PERSON TRAINING Tuesday, December 13, :00 A.M. 5:00 P.M. Duties, Responsibilities and Ethics of a Guardian of the Person and the Property Wendy H. Sheinberg, Esq., CELA Davidow, Davidow, Siegel & Stern, LLP

34 Table of Contents Selections from text of MHL Article 81 Pages 1 to 28 Selections from Guardian Assistance Network Website Kings County Pages 29 to 58 Selections from NY County Supreme Court Website Pages 59 to 74 Sample forms from NY County Supreme Court Website Pages 75 to 119 Selections from Nassau County Supreme Court Website Pages 120 to 122 Sample forms from Nassau County Supreme Court Website Pages 123 to 124 Selections from Bronx County Supreme Court Website Pages 125 to 128 Link for Queens County Supreme Court Website Pages 129 to 129 Copy of Slides Pages 130 to End

35 NEW YORK MENTAL HYGIENE LAW: ARTICLE 81 This link takes you to a free website with the text of Article 81 HY0TEA81+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN= &TARGET=VIE W The simple home page is: Scroll down to MHY Mental Hygiene Law. Click the link. Scroll down to Article 81. Click the link. [1]

36 Mental Hygiene Law Article Legislative findings and purpose Power to appoint a guardian of the person and/or property; standard for appointment Definitions Jurisdiction Venue Who may commence a proceeding Notice Petition Appointment of court evaluator Counsel Hearing Burden and quantum of proof Timing of hearing Record of the proceedings Findings Dispositional alternatives Nomination of guardian Foreign guardian for a person not present in the state Eligibility as guardian Duties of guardian Powers of guardian; property management Powers of guardian; personal needs Provisional remedies Notice of pendency Filing of bond by guardian Designation of clerk to receive process Commission to guardian Compensation of guardian Effect of the appointment on the incapacitated person Initial report Annual report Examination of initial and annual reports Intermediate and final report Decree on filing instruments approving accounts Removal of guardian Discharge or modification of powers of guardian Resignation or suspension of powers of guardian Vacancy in office Guardian education requirements Court evaluator education requirements Court examiner education requirements Compliance Proceedings to discover property withheld Proceedings upon the death of an incapicitated person. [2]

37 Selected sections of Article 81 [3]

38 Laws of New York Duties of guardian. (a) Duties of guardian generally. 1. a guardian shall exercise only those powers that the guardian is authorized to exercise by court order; 2. a guardian shall exercise the utmost care and diligence when acting on behalf of the incapacitated person; 3. a guardian shall exhibit the utmost degree of trust, loyalty and fidelity in relation to the incapacitated person; 4. a guardian shall file an initial and annual reports in accordance with sections and of this article; 5. a guardian shall visit the incapacitated person not less than four times a year or more frequently as specified in the court order; 6. a guardian who is given authority with respect to property management for the incapacitated person shall: (i) afford the incapacitated person the greatest amount of independence and self-determination with respect to property management in light of that person's functional level, understanding and appreciation of his or her functional limitations, and personal wishes, preferences and desires with regard to managing the activities of daily living; (ii) preserve, protect, and account for such property and financial resources faithfully; (iii) determine whether the incapacitated person has executed a will, determine the location of any will, and the appropriate persons to be notified in the event of the death of the incapacitated person and, in the event of the death of the incapacitated person, notify those persons; (iv) use the property and financial resources and income available therefrom to maintain and support the incapacitated person, and to maintain and support those persons dependent upon the incapacitated person; (v) at the termination of the appointment, deliver such property to the person legally entitled to it; (vi) file with the recording officer of the county wherein the incapacitated person is possessed of real property, an acknowledged statement to be recorded and indexed under the name of the incapacitated person identifying the real property possessed by the incapacitated person, and the tax map numbers of the property, and stating the date of adjudication of incapacity of the person regarding property management, and the name, address, and telephone number of the guardian and the guardian's surety; and (vii) perform all other duties required by law. 7. a guardian who is given authority relating to the personal needs of the incapacitated person shall afford the incapacitated person the greatest amount of independence and self-determination with respect to personal needs in light of that person's functional level, understanding and appreciation of that person's functional limitations, and personal wishes, preferences and desires with regard to managing the activities [4] (1 of 2)11/20/2011 8:53:37 AM

39 Laws of New York of daily living. [5] (2 of 2)11/20/2011 8:53:37 AM

40 Laws of New York Powers of guardian; property management. (a) Consistent with the functional limitations of the incapacitated person, that person's understanding and appreciation of the harm that he or she is likely to suffer as the result of the inability to manage property and financial affairs, and that person's personal wishes, preferences, and desires with regard to managing the activities of daily living, and the least restrictive form of intervention, the court may authorize the guardian to exercise those powers necessary and sufficient to manage the property and financial affairs of the incapacitated person; to provide for the maintenance and support of the incapacitated person, and those persons depending upon the incapacitated person; to transfer a part of the incapacitated person's assets to or for the benefit of another person on the ground that the incapacitated person would have made the transfer if he or she had the capacity to act. Transfers made pursuant to this article may be in any form that the incapacitated person could have employed if he or she had the requisite capacity, except in the form of a will or codicil. Those powers which may be granted include, but are not limited to, the power to: 1. make gifts; 2. provide support for persons dependent upon the incapacitated person for support, whether or not the incapacitated person is legally obligated to provide that support; 3. convey or release contingent and expectant interests in property, including marital property rights and any right of survivorship incidental to joint tenancy or tenancy by the entirety; 4. exercise or release powers held by the incapacitated person as trustee, personal representative, guardian for minor, guardian, or donee of a power of appointment; 5. enter into contracts; 6. create revocable or irrevocable trusts of property of the estate which may extend beyond the incapacity or life of the incapacitated person; 7. exercise options of the incapacitated person to purchase securities or other property; 8. exercise rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value; 9. exercise any right to an elective share in the estate of the incapacitated person's deceased spouse; 10. renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer consistent with paragraph (d) of section of the estates, powers and trusts law; 11. authorize access to or release of confidential records; 12. apply for government and private benefits; 13. marshall assets; 14. pay the funeral expenses of the incapacitated person; 15. pay such bills as may be reasonably necessary to maintain the [6] (1 of 4)11/20/2011 8:58:04 AM

41 Laws of New York incapacitated person; 16. invest funds of the incapacitated person as permitted by section of the estates, powers and trusts law; 17. lease the primary residence for up to three years; 18. retain an accountant; 19. pay bills after the death of the incapacitated person provided the authority existed to pay such bills prior to death until a temporary administrator or executor is appointed; and 20. defend or maintain any judicial action or proceeding to a conclusion until an executor or administrator is appointed. The guardian may also be granted any power pursuant to this subdivision granted to committees and conservators and guardians by other statutes subject to the limitations, conditions, and responsibilities of the exercise thereof unless the granting of such power is inconsistent with the provisions of this article. (b) If the petitioner or the guardian seeks the authority to exercise a power which involves the transfer of a part of the incapacitated person's assets to or for the benefit of another person, including the petitioner or guardian, the petition shall include the following information: 1. whether any prior proceeding has at any time been commenced by any person seeking such power with respect to the property of the incapacitated person and, if so, a description of the nature of such application and the disposition made of such application; 2. the amount and nature of the financial obligations of the incapacitated person including funds presently and prospectively required to provide for the incapacitated person's own maintenance, support, and well-being and to provide for other persons dependent upon the incapacitated person for support, whether or not the incapacitated person is legally obligated to provide that support; a copy of any court order or written agreement setting forth support obligations of the incapacitated person shall be attached to the petition if available to the petitioner or guardian; 3. the property of the incapacitated person that is the subject of the present application; 4. the proposed disposition of such property and the reasons why such disposition should be made; 5. whether the incapacitated person has sufficient capacity to make the proposed disposition; if the incapacitated person has such capacity, his or her written consent shall be attached to the petition; 6. whether the incapacitated person has previously executed a will or similar instrument and if so, the terms of the most recently executed will together with a statement as to how the terms of the will became known to the petitioner or guardian; for purposes of this article, the term "will" shall have the meaning specified in section of the estates, powers and trusts law and "similar instrument" shall include a revocable or irrevocable trust: [7] (2 of 4)11/20/2011 8:58:04 AM

42 Laws of New York (i) if the petitioner or guardian can, with reasonable diligence, obtain a copy, a copy of the most recently executed will or similar instrument shall be attached to the petition; in such case, the petition shall contain a statement as to how the copy was secured and the basis for the petitioner or guardian's belief that such copy is a copy of the incapacitated person's most recently executed will or similar instrument. (ii) if the petitioner or guardian is unable to obtain a copy of the most recently executed will or similar instrument, or if the petitioner or guardian is unable to determine whether the incapacitated person has previously executed a will or similar instrument, what efforts were made by the petitioner or guardian to ascertain such information. (iii) if a copy of the most recently executed will or similar instrument is not otherwise available, the court may direct an attorney or other person who has the original will or similar instrument in his or her possession to turn a photocopy over to the court for its examination, in camera. A photocopy of the will or similar instrument shall then be turned over by the court to the parties in such proceeding unless the court finds that to do so would be contrary to the best interests of the incapacitated person; 7. a description of any significant gifts or patterns of gifts made by the incapacitated person; 8. the names, post-office addresses and relationships of the presumptive distributees of the incapacitated person as that term is defined in subdivision forty-two of section one hundred three of the surrogate's court procedure act and of the beneficiaries under the most recent will or similar instrument executed by the incapacitated person. (c) Notice of a petition seeking relief under this section shall be served upon: (i) the persons entitled to notice in accordance with paragraph one of subdivision (d) of section of this article; (ii) if known to the petitioner or guardian, the presumptive distributees of the incapacitated person as that term is defined in subdivision forty-two of section one hundred three of the surrogate's court procedure act unless the court dispenses with such notice; and (iii) if known to the petitioner or guardian, any person designated in the most recent will or similar instrument of the incapacitated person as beneficiary whose rights or interests would be adversely affected by the relief requested in the petition unless the court dispenses with such notice. (d) In determining whether to approve the application, the court shall consider: 1. whether the incapacitated person has sufficient capacity to make the proposed disposition himself or herself, and, if so, whether he or she has consented to the proposed disposition; 2. whether the disability of the incapacitated person is likely to be of sufficiently short duration such that he or she should make the [8] (3 of 4)11/20/2011 8:58:04 AM

43 Laws of New York determination with respect to the proposed disposition when no longer disabled; 3. whether the needs of the incapacitated person and his or her dependents or other persons depending upon the incapacitated person for support can be met from the remainder of the assets of the incapacitated person after the transfer is made; 4. whether the donees or beneficiaries of the proposed disposition are the natural objects of the bounty of the incapacitated person and whether the proposed disposition is consistent with any known testamentary plan or pattern of gifts he or she has made; 5. whether the proposed disposition will produce estate, gift, income or other tax savings which will significantly benefit the incapacitated person or his or her dependents or other persons for whom the incapacitated person would be concerned; and 6. such other factors as the court deems relevant. (e) The court may grant the application if satisfied by clear and convincing evidence of the following and shall make a record of these findings: 1. the incapacitated person lacks the requisite mental capacity to perform the act or acts for which approval has been sought and is not likely to regain such capacity within a reasonable period of time or, if the incapacitated person has the requisite capacity, that he or she consents to the proposed disposition; 2. a competent, reasonable individual in the position of the incapacitated person would be likely to perform the act or acts under the same circumstances; and 3. the incapacitated person has not manifested an intention inconsistent with the performance of the act or acts for which approval has been sought at some earlier time when he or she had the requisite capacity or, if such intention was manifested, the particular person would be likely to have changed such intention under the circumstances existing at the time of the filing of the petition. (f) Nothing in this article imposes any duty on the guardian to commence a special proceeding pursuant to this article seeking to transfer a part of the assets of the incapacitated person to or for the benefit of another person and the guardian shall not be liable or accountable to any person for having failed to commence a special proceeding pursuant to this article seeking to transfer a part of the assets of the incapacitated person to or for the benefit of another person. [9] (4 of 4)11/20/2011 8:58:04 AM

44 Laws of New York Powers of guardian; personal needs. (a) Consistent with the functional limitations of the incapacitated person, that person's understanding and appreciation of the harm that he or she is likely to suffer as the result of the inability to provide for personal needs, and that person's personal wishes, preferences, and desires with regard to managing the activities of daily living, and the least restrictive form of intervention, the court may grant to the guardian powers necessary and sufficient to provide for the personal needs of the incapacitated person. Those powers which may be granted include, but are not limited to, the power to: 1. determine who shall provide personal care or assistance; 2. make decisions regarding social environment and other social aspects of the life of the incapacitated person; 3. determine whether the incapacitated person should travel; 4. determine whether the incapacitated person should possess a license to drive; 5. authorize access to or release of confidential records; 6. make decisions regarding education; 7. apply for government and private benefits; 8. (i) for decisions in hospitals as defined by subdivision eighteen of section twenty-nine hundred ninety-four-a of the public health law, act as the patient's surrogate pursuant to and subject to article twenty-nine-cc of the public health law, and (ii) in all other circumstances, to consent to or refuse generally accepted routine or major medical or dental treatment, subject to the decision-making standard in subdivision four of section twenty-nine hundred ninety-four-d of the public health law; 9. choose the place of abode; the choice of abode must be consistent with the findings under section of this article, the existence of and availability of family, friends and social services in the community, the care, comfort and maintenance, and where appropriate, rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person resides; placement of the incapacitated person in a nursing home or residential care facility as those terms are defined in section two thousand eight hundred one of the public health law, or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person. (b) No guardian may: 1. consent to the voluntary formal or informal admission of the incapacitated person to a mental hygiene facility under article nine or fifteen of this chapter or to a chemical dependence facility under article twenty-two of this chapter; 2. revoke any appointment or delegation made by the incapacitated person pursuant to sections , and of the general obligations law, sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law, or any living [10] (1 of 2)11/20/2011 9:02:53 AM

45 Laws of New York will. [11] (2 of 2)11/20/2011 9:02:53 AM

46 Laws of New York Compensation of guardian. (a) The court shall establish, and may from time to time modify, a plan for the reasonable compensation of the guardian or guardians. The plan for compensation of such guardian must take into account the specific authority of the guardian or guardians to provide for the personal needs and/or property management for the incapacitated person, and the services provided to the incapacitated person by such guardian. (b) If the court finds that the guardian has failed to discharge his or her duties satisfactorily in any respect, the court may deny or reduce the compensation which would otherwise be allowed. [12] 8:58:45 AM

47 Laws of New York Effect of the appointment on the incapacitated person. (a) An incapacitated person for whom a guardian has been appointed retains all powers and rights except those powers and rights which the guardian is granted. (b) Subject to subdivision (a) of this section, the appointment of a guardian shall not be conclusive evidence that the person lacks capacity for any other purpose, including the capacity to dispose of property by will. (c) The title to all property of the incapacitated person shall be in such person and not in the guardian. The property shall be subject to the possession of the guardian and to the control of the court for the purposes of administration, sale or other disposition only to the extent directed by the court order appointing the guardian. (d) If the court determines that the person is incapacitated and appoints a guardian, the court may modify, amend, or revoke any previously executed appointment, power, or delegation under section , , or of the general obligations law or section two thousand nine hundred sixty-five of the public health law, or section two thousand nine hundred eighty-one of the public health law notwithstanding section two thousand nine hundred ninety-two of the public health law, or any contract, conveyance, or disposition during lifetime or to take effect upon death, made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed appointment, power, delegation, contract, conveyance, or disposition during lifetime or to take effect upon death, was made while the person was incapacitated or if the court determines that there has been a breach of fiduciary duty by the previously appointed agent. In such event, the court shall require that the agent account to the guardian. The court shall not, however, invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person. [13] 8:59:15 AM

48 Laws of New York Initial report. (a) No later than ninety days after the issuance of the commission to the guardian, the guardian shall file with the court that appointed the guardian a report in a form prescribed by the court stating what steps the guardian has taken to fulfill his or her responsibilities. Proof of completion of the guardian education requirements under section of this article must be filed with the initial report. (b) To the extent that the guardian has been granted powers with respect to property management, the initial report shall contain a verified and complete inventory of the property and financial resources over which the guardian has control, the location of any will executed by the incapacitated person, the guardian's plan, consistent with the court's order of appointment, for the management of such property and financial resources, and any need for any change in the powers authorized by the court. (c) To the extent that the guardian has been granted powers regarding personal needs, the initial report shall contain a report of the guardian's personal visits with the incapacitated person, and the steps the guardian has taken, consistent with the court's order, to provide for the personal needs of that person, the guardian's plan, consistent with the court's order of appointment, for providing for the personal needs of the incapacitated person, a copy of any directives in accordance with sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law, any living will, and any other advance directive, and any necessary change in the powers authorized by the court. The plan for providing for the personal needs of the incapacitated person shall include the following information: 1. the medical, dental, mental health, or related services that are to be provided for the welfare of the incapacitated person; 2. the social and personal services that are to be provided for the welfare of the incapacitated person; 3. any physical, dental, and mental health examinations necessary to determine the medical, dental, and mental health treatment needs; and 4. the application of health and accident insurance and any other private or government benefits to which the incapacitated person may be entitled to meet any part of the costs of medical, dental, mental health, or related services provided to the incapacitated person. (d) If the initial report sets forth any reasons for a change in the powers authorized by the court, the guardian shall make an application within ten days of the filing of the report on notice to the persons entitled to such notice in accordance with paragraph one of subdivision (d) of section of this article for such relief. If the initial report sets forth any reasons for a change in the powers authorized by the court and the guardian fails to act under this subdivision, any person entitled to commence a proceeding under this article may petition the court for a change in such powers on notice to the guardian and the persons entitled to such notice in accordance with paragraph one of [14] (1 of 2)11/20/2011 9:05:28 AM

49 Laws of New York subdivision (d) of section of this article for such relief. (e) The guardian shall send a copy of the initial report to the incapacitated person by mail unless the court orders otherwise pursuant to paragraph seven of subdivision (b) and paragraph nine of subdivision (c) of section of this article. (f) The guardian shall send a copy of the initial report to the court evaluator and counsel for the incapacitated person at the time of the guardianship proceeding unless the court orders otherwise pursuant to paragraph seven of subdivision (b) and paragraph nine of subdivision (c) of section of this article. (g) The guardian shall send a copy of the initial report to the court examiner. (h) If the incapacitated person resides in a facility, the guardian shall send a duplicate of such report to the chief executive officer of that facility. (i) If the incapacitated person resides in a mental hygiene facility, the guardian shall send a duplicate of such report to the mental hygiene legal service of the judicial department in which the residence is located. [15] (2 of 2)11/20/2011 9:05:28 AM

50 Laws of New York Annual report. (a) Filing of annual report. Every guardian shall file a report annually in the month of May, or at any other time upon motion or order of the court. (b) The report shall be in a form prescribed by the court and shall include the following information: 1. the present address and telephone number of the guardian. 2. the present address, and telephone number of the incapacitated person; if the place of residence of the incapacitated person is not his or her personal home, the name, address, and telephone number of the facility or place at which the person resides and the name of the chief executive officer of the facility or person otherwise responsible for the person's care. 3. any major changes in the physical or mental condition of the incapacitated person and any substantial change in medication. 4. the date that the incapacitated person was last examined or otherwise seen by a physician and the purpose of that visit. 5. a statement by a physician, psychologist, nurse clinician, or social worker, or other person that has evaluated or examined the incapacitated person within the three months prior to the filing of the report regarding an evaluation of the incapacitated person's condition and the current functional level of the incapacitated person. 6. to the extent the guardian is charged with providing for the personal needs of the incapacitated person: (i) a statement of whether the current residential setting is best suited to the current needs of the incapacitated person; (ii) a resume of any professional medical treatment given to the ward in the preceding year; (iii) the plan for medical, dental, and mental health treatment, and related services in the coming year; (iv) information concerning the social condition of the incapacitated person, including: the social and personal services currently utilized by the incapacitated person; the social skills of the incapacitated person; and the social needs of the incapacitated person. 7. to the extent the guardian is charged with property management, information required by the provisions of the surrogate's court procedure act prescribing the form of papers to be filed upon the annual accounting of a general guardian of an infant's property. 8. where the guardian has used or employed the services of the incapacitated person or where moneys have been earned by or received on behalf of such incapacitated person an accounting of any moneys earned or derived from such services. 9. a resume of any other activities performed by the guardian on behalf of the incapacitated person. 10. facts indicating the need to terminate the appointment of the guardian, or for any alteration in the powers of the guardian and what specific authority is requested or what specific authority of the guardian will be affected. [16] (1 of 2)11/20/2011 9:06:02 AM

51 Laws of New York 11. any other information which the guardian may be required to file by the order of appointment. (c) The guardian shall send a copy of the annual report to the incapacitated person by mail unless the court orders otherwise pursuant to paragraph seven of subdivision (b) and paragraph nine of subdivision (c) of section of this article, shall send a copy of the annual report to the court examiner, and shall file a copy of the annual report as provided herein. If the incapacitated person resides in a facility, the guardian shall send a duplicate of such report to the chief executive officer of that facility. If the incapacitated person resides in a mental hygiene facility, the guardian shall send a duplicate of such report to the mental hygiene legal service of the judicial department in which the residence is located. If mental hygiene legal service was appointed as court evaluator or as counsel for the incapacitated person at the time of the guardianship proceeding, the guardian shall send a duplicate of such report to the mental hygiene legal service of the judicial department where venue of the guardianship proceeding was located if so ordered by the court. (d) The report shall be filed in the office of the clerk of the court which appointed the guardian. (e) If the annual report sets forth any reasons for a change in the powers authorized by the court, the guardian shall make an application within ten days of the filing of the report on notice to the persons entitled to such notice in accordance with paragraph three of subdivision (c) of section of this article for such relief. If the annual report sets forth any reasons for a change in the powers authorized by the court, and the guardian fails to act in accordance with this subdivision, any person entitled to commence a proceeding under this article may petition the court for a change in such powers on notice to the guardian and the persons entitled to such notice in accordance with paragraph three of subdivision (c) of section of this article for such relief. [17] (2 of 2)11/20/2011 9:06:02 AM

52 Laws of New York Examination of initial and annual reports. (a) Examination of reports generally. 1. Initial report. Within thirty days of the filing of the initial report, the initial report filed by a guardian under this article shall be examined. 2. Annual examination. Within thirty days after the filing of the annual report of the preceding year, the annual reports filed by guardians under this article shall be examined to determine the condition and care of the incapacitated person, the finances of the incapacitated person, and the manner in which the guardian has carried out his or her duties and exercised his or her powers. (b) Examiners. The presiding justice of the appellate division in each department, or a justice of the supreme court or a special referee designated by a majority of the justices of the appellate division in each department at the request of the presiding justice, shall examine, or cause to be examined by persons designated by the presiding justice or the justices as examiners, all such reports. (c) Failure to report. 1. If a guardian fails to file his or her initial or annual report, the person authorized to examine the report shall demand that the guardian file the report within fifteen days after the service of the demand upon him or her. A copy of the demand shall be served upon the guardian or his or her resident agent by certified mail. 2. Upon failure to comply with such demand, the court, may upon the motion of the court examiner, enter an order requiring compliance with the demand and may deny or reduce the amount of the compensation of the guardian, or remove the guardian pursuant to section of this article absent a showing that the guardian has acted in good faith. (d) Incomplete report. 1. If the person authorized to examine the report is of the opinion that a more complete or satisfactory report should be filed, the person authorized to examine the report shall demand that the guardian file a revised report or proof of any item in the report. A copy of the demand shall be served upon the guardian or his or her resident agent by certified mail. 2. Upon failure to comply with such demand, the court, may upon the motion of the court examiner, enter an order requiring compliance with the demand and may deny or reduce the amount of the compensation of the guardian, or remove the guardian pursuant to section of this article absent a showing that the guardian has acted in good faith. (e) Duty of examiners. The person examining the report may examine the guardian and other witnesses under oath and reduce their testimony to writing. The person examining the report, on five days notice to the guardian, shall file a report in the form and manner prescribed by the order appointing the examiner. (f) Expenses of examination. The expenses of the examination shall be payable out of the estate of the incapacitated person examined if the estate amounts to five thousand dollars or more, or, if the estate [18] (1 of 2)11/20/2011 9:06:30 AM

53 Laws of New York amounts to less than this sum, by the county treasurer of the county or, within the city of New York by the comptroller of the city of New York, out of any court funds in his or her hands. [19] (2 of 2)11/20/2011 9:06:30 AM

54 Laws of New York Intermediate and final report. (a) A guardian may move in the court of his or her appointment for an order permitting him or her to render an intermediate report to the date of the filing thereof in a form prescribed by the court which shall include the same information as is required under section of this article provided, however, that if the incapacitated person has died the report need not include information otherwise required in paragraphs five and six of subdivision (b) of section of this article. The court may order the report to be filed with the clerk of the court on or before a fixed date. (b) When a guardian dies or is removed, suspended, discharged pursuant to the provisions of this article, or allowed to resign, the court shall order a final report in a form prescribed by the court which shall include the same information as is required under section of this article provided, however, that if the incapacitated person has died the report need not include information otherwise required in paragraphs five and six of subdivision (b) of section of this article. When such a report has been made in the course of a proceeding to remove a guardian, the court may dispense with a further report. (c) Notice of the filing of a report under this section shall be served upon the persons entitled to notice pursuant to paragraph three of subdivision (c) of section of this article. If the incapacitated person is deceased, notice shall also be served upon his or her executor or administrator, if any. (d) The court may appoint counsel for the incapacitated person, if living, for the protection of such person's rights and interests with regard to such report. The court may appoint a referee to hear the matter and report to the court. (e) Upon the motion for a confirmation of the report of the referee, or if the report is made before the court, upon the court's determination, the report shall be judicially approved and filed. The compensation of the referee and of counsel shall be fixed by the court and shall be payable out of the estate of the incapacitated person unless it is determined that the incapacitated person is indigent. (f) If the incapacitated person resides in a facility, a copy of a report under this section shall be served upon the chief executive officer in charge of that facility and upon the mental hygiene legal service of the judicial department in which the residence is located. [20] 9:17:03 AM

55 Laws of New York Decree on filing instruments approving accounts. (a) The guardian or the personal representative of the guardian may present to the court a petition showing the names and addresses of all persons entitled to receive notice pursuant to paragraph three of subdivision (c) of section of this article and the personal representative of the estate showing that, to the extent the guardian is responsible for the property of the incapacitated person, all taxes have been paid or that no taxes are due and that the petitioner has fully reported and has made full disclosure in writing of all the guardian's actions affecting the property of the incapacitated person to all persons interested and seeking a decree releasing and discharging the petitioner. Upon the death of the incapacitated person, the guardian is authorized to pay the funeral expenses of the incapacitated person and, in the absence of a duly appointed personal representative of the estate, pay estimated estate and income tax charges, as well as other charges of emergent nature. (b) The petitioner shall also show that the incapacitated person has died or that the guardian has died, or has been removed, suspended, or discharged pursuant to the provisions of this article, or allowed to resign. (c) The petitioner shall also file with the petition acknowledged instruments executed by all persons interested or in the case of an infant, or incapacitated person whose claim has been paid, by the guardian, or guardian receiving payment, approving the report of the petitioner and releasing and discharging the petitioner. (d) The court may thereupon make a decree releasing and discharging the petitioner and the sureties on his or her bond, if any, from any further liability to the persons interested. [21] 9:17:33 AM

56 Laws of New York Removal of guardian. Upon motion, the court appointing a guardian may remove such guardian when the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just. Notice of motion shall be served on the guardian and persons entitled to receive notice pursuant to paragraph three of subdivision (c) of section of this article. The motion may be made by the person examining initial and annual reports pursuant to section of this article, or by any person entitled to commence a proceeding under this article, including the incapacitated person. The court may fix the compensation of any attorney or person prosecuting the motion. It may compel the guardian to pay personally the costs of the motion if granted. [22] 9:18:10 AM

57 Laws of New York Discharge or modification of powers of guardian. (a) The court appointing the guardian shall discharge such guardian, or modify the powers of the guardian where appropriate, if it appears to the satisfaction of the court that: 1. the incapacitated person has become able to exercise some or all of the powers necessary to provide for personal needs or property management which the guardian is authorized to exercise; 2. the incapacitated person has become unable to exercise powers necessary to provide for personal needs or property management which the guardian is not authorized to exercise; 3. the incapacitated person has died; or 4. for some other reason, the appointment of the guardian is no longer necessary for the incapacitated person, or the powers of the guardian should be modified based upon changes in the circumstances of the incapacitated person. (b) The application for relief under this section may be made by the guardian, the incapacitated person, or any person entitled to commence a proceeding under this article. (c) There shall be a hearing on notice to the persons entitled to notice pursuant to paragraph three of subdivision (c) of section of this article. The court may for good cause shown dispense with the hearing provided that an order of modification increasing the powers of the guardian shall set forth the factual basis for dispensing with the hearing. If the incapacitated person or his or her counsel raises an issue of fact as to the ability of the incapacitated person to provide for his or her personal needs or property management and demands a jury trial of such issue, the court shall order a trial by jury thereof. (d) To the extent that relief sought under this section would terminate the guardianship or restore certain powers to the incapacitated person, the burden of proof shall be on the person objecting to such relief. To the extent that relief sought under this section would further limit the powers of the incapacitated person, the burden shall be on the person seeking such relief. (e) If the guardian is discharged because the incapacitated person becomes fully able to care for his or her property, the court shall order that there be restored to such person the property remaining in the hands of the guardian. If the incapacitated person dies, the guardian shall provide for such person's burial or other disposition the cost of which shall be borne by the estate of the incapacitated person. [23] 9:18:41 AM

58 Laws of New York Resignation or suspension of powers of guardian. (a) The court appointing a guardian may allow the guardian to resign or may suspend the powers of the guardian. (b) Where a guardian is engaged in war service as defined in section seven hundred seventeen of the surrogate's court procedure act, the court, upon motion by the guardian or any other person and upon such notice as the court may direct, may suspend the powers of the guardian until further order of the court. If the suspension will leave no other person acting as guardian, the motion shall seek the appointment of a successor. When the suspended guardian becomes able to serve, he or she may be reinstated by the court upon motion and such notice as the court may direct. If the suspended guardian is reinstated, the court shall thereupon discharge his or her successor, who may be required to account, and make any other order as justice requires. [24] 9:19:07 AM

59 Laws of New York Proceedings to discover property withheld. (a) To the extent that it is consistent with the authority otherwise granted by the court a guardian may commence a proceeding in the court which appointed the guardian to discover property withheld. The petition shall contain knowledge, or information and belief of any facts tending to show that any interest in real property or money or other personal property, or the proceeds or value thereof, which should be delivered and paid to the guardian, is in the possession, under the control, or within the knowledge or information of respondent who withholds the same from the guardian, whether such possession or control was obtained before or after the appointment of the guardian, or that the respondent refuses to disclose knowledge or information which such person may have concerning the same or which will aid the guardian in making discovery of such property. The petition shall request that respondent be ordered to attend an inquiry and be examined accordingly and deliver property of the incapacitated person if it is within his or her control. The petition may be accompanied by an affidavit or other written evidence, tending to support the allegations thereof. If the court is satisfied on the papers so presented that there are reasonable grounds for the inquiry, it must make an order accordingly, which may be returnable forthwith, or at a future time fixed by the court, and may be served at any time before the hearing. If it shall appear from the petition or from the answer interposed thereto, or in the course of the inquiry made pursuant to the order that a person other than the respondent in the proceeding claims an interest in the property or the proceeds or the value thereof, the court may by the original order or by supplemental order, direct such additional party to attend and be examined in the proceeding in respect of his or her adverse claim, and deliver the property if in his or her control or the proceeds or value thereof. Service of such an order must be made by delivery of a certified copy thereof to the person or persons named therein and the payment or tender, to each of the sum required by law to be paid or tendered to a witness who is subpoenaed to attend a trial in such court. (b) If the person directed to appear submits an answer denying any knowledge concerning or the possession of any property which belongs to the incapacitated person or should be delivered to the guardian, or shall make default in answer, he or she shall be sworn to answer truly all questions put to him or her regarding the inquiry requested in the petition. Any claim of title to or right to the possession of any property of the incapacitated person must be made by verified answer in writing. If such answer is interposed, the issues raised thereby shall be tried according to the usual practice of the court as a litigated issue but the interposition of such answer shall not limit the right of the guardian to proceed with the inquiry in respect of property not so claimed by the verified answer. If possession of the property is denied, proof on that issue may be presented to the court by either party. The court may in an appropriate case make interim decrees directing the delivery of property not claimed by verified answer and may continue the [25] (1 of 2)11/20/2011 9:20:12 AM

60 Laws of New York proceeding for determination of any litigated issue. If it appears that the guardian is entitled to the possession of the property, the decree shall direct delivery thereof to the guardian or if the property shall have been diverted or disposed of, the decree may direct payment of the proceeds or the value of such property or may impress a trust upon said proceeds or make any determination which a court of equity might decree in following trust property funds. In any case in which a verified answer is served and the court after a trial or hearing determines the issue, the court may in its discretion award costs not exceeding fifty dollars and disbursements to be paid by the unsuccessful party. [26] (2 of 2)11/20/2011 9:20:12 AM

61 Laws of New York 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 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 [27] (1 of 2)11/20/2011 9:20:39 AM

62 Laws of New York 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 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. [28] (2 of 2)11/20/2011 9:20:39 AM

63 The Guardian Assistance Network (GAN) [29]

64 Visit your ward at least once during the first 90 days (the law requires you to visit at least four times per year) Attend a guardianship training program, which explains your responsibilities as guardian [30] Guardian Assistance Network The First 90 Days: From Commission to Initial Report What Is a Guardian? From Court Hearing to Guardianship Commision The First 90 Days: From Commision to Initial Report The Guardian for Personal Needs The Guardian for Property Management The Initial & Annual Reports Ending a Guardianship Español Now that you have your Commission in hand you can start to make decisions for your ward the way the judge wants you to. The first 90 days after you received your Guardianship Commission are important since you are learning the rules of the law and become familiar with the requirements of the court AND you are also expected to find out how you can best care for your ward. At the end of those first 90 days you are expected to write your Initial Report to the court. Since your job is limited to what the judge put in the original Order and Judgment you must keep this document handy so that you can refer to it any time you have a question. Some of the things you must do during the first 90 days after you have received your Commission are very general and some depend on whether you are a Guardian for Property Management or for Personal Needs, or both. You should follow the list below as you start your work as a guardian. Start-Up Duties of All Guardians How can I take care of my duties and also get ready to write the Initial Report? Start-Up Duties of All Guardians As guardian, regardless of whether you are a guardian for Personal Needs or Property Management, you must: (1 of 3)11/20/2011 9:22:58 AM See whether you can find a will, living will, health care proxy or other contract created by your ward

65 How can I take care of my duties and also get ready to write the Initial Report? Once you start to carry out your duties, it is wise to keep notes of everything you do on behalf of your ward. Many guardians buy a notebook for this purpose in which they write down what they have done for their ward, whom they have spoken with, the names of people and institutions they have contacted and their phone numbers and addresses. A good habit would be to write the date down for each activity you describe in your notebook such notes to yourself are important reminders that you can use later when you start writing your Initial Report and the Annual Reports you are expected to submit in the following years. When you visit your ward or when you undertake any task on behalf of your ward you should write down what you have done and for what purpose. When you visit your ward you should write some of your observations down. A Guardian for Personal Needs might ask for example: [31] Guardian Assistance Network Determine what services and programs your ward needs Start making a plan for your ward s care Set up a system to keep all documents and papers in a safe place Keep receipts of all payments you make for your ward At the end of the first 90 days you must submit your Initial Report to the court (2 of 3)11/20/2011 9:22:58 AM How well is your ward doing? Is he or she clean, well groomed, content? Has he or she been ill? How well are his or her personal and medical needs addressed? Are there major changes in his or her condition for better or for worse? What additional services and medical care does your ward need? What appointments must be made for your ward.

66 What questions you may have for your ward s caregivers (doctors, nurses, homecare workers, therapists). A list of all medications your ward is currently taking, including prescription drugs and over-the-counter medications - include how often and how much each medication is taken. In addition to keeping a notebook you should also get in the habit of keeping all important papers together in one place, starting with your Order and Judgment and everything else that you will receive from the court over time. Other important papers you must save in a safe place are the documents you may find in your ward s home, such as: insurance papers, a will or testament, a health care proxy or living will, tax filings, contracts, and anything else you find among your ward s papers. Some guardians use a large plastic container to keep all their documents in, others designate a drawer in a file cabinet they may have. Guardians for Property Management also must keep all bank statements, invoices and receipts for money they spend either out of their own funds or out of their ward s funds. State Justice Institute Guardian Assistance Network Kings County Supreme Court 360 Adams Street, Room 723 Brooklyn, NY (347) GAN@courts.state.ny.us [32] Guardian Assistance Network The names, addresses and phone numbers of your ward s doctors; social workers; homecare agencies; and other relevant information. NOTE: Having good notes and receipts and documents will make your task much easier in the long run when you must write your Initial and Annual Reports to the court about the actions you have taken on behalf of your ward. Copyright 2008 Vera Institute of Justice, Inc. A demonstration project of the Vera Institute of Justice, Inc. (3 of 3)11/20/2011 9:22:58 AM

67 [33] Guardian Assistance Network The Guardian for Personal Needs What Is a Guardian? From Court Hearing to Guardianship Commision The First 90 Days: From Commision to Initial Report The Guardian for Personal Needs The Guardian for Property Management The Initial & Annual Reports Ending a Guardianship Español If you are your ward s Guardian for Personal Needs, 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. Examples of such personal decisions are generally those most people make for themselves in ordinary life. Example Things Guardians for Personal Needs May Not Do Can I ask the Judge to change the Order and Judgment? Example: Guardian for Personal Needs John Barnes is a retired merchant marine who lives alone in a small walk-up apartment in Brooklyn. John is known to many neighbors on his block because he is always willing to do small chores for them. Lately the neighbors have noticed that John is not looking well, his clothes are dirty, and he has lost a lot of weight. Recently John was hospitalized when he broke his hip falling on the icy street in front of his apartment. At the hospital the doctors found him confused and suffering from malnutrition. John was sent to a nursing home to learn to walk again. The staff there felt that he should not go home again because he was too frail to live alone. The nursing home applied to have a guardian appointed for John. At the hearing the judge found John to be frail but also noticed that he very much wanted to go back home again he hated to be in the nursing home. At the hearing John agreed that he would accept a guardian to help him and that he would accept home care to make it possible for him to live alone. His next door neighbor, Harry, was appointed Guardian for Personal Needs to help John live at home, to obtain homecare for him, and to make sure that John goes for regular doctor visits and obtains the medications he (1 of 3)11/20/2011 9:24:04 AM

68 The Order and Judgment will give you directions about your duties as Guardian for Personal Needs. For example, the judge may have given you power to make all of the decisions listed below, or just some of them: Things Guardians for Personal Needs May Not Do Guardians are always limited in what they are allowed to do by the Order and Judgment. Below are examples of things guardians may not do without court approval. Do anything that is not stated in the Order and Judgment Take away any powers or rights from the ward that the judge has not approved beforehand Move the ward to another home or a nursing home Sign the ward into a mental hygiene or substance abuse facility or force treatment, including medication, on a ward who refuses it Revoke a will, health care proxy, living will, power of attorney, or other contract that the ward made before a Guardian was appointed Apply for a divorce on behalf of the ward Make end-of-life medical decisions or refuse life-sustaining treatment unless the judge gave the Guardian that power [34] Guardian Assistance Network needs. The judge found that John is still able to take care of his financial affairs and did not give Harry the power for Property Management. Where your ward will live Whether your ward must have home care Who will provide personal care or housekeeping assistance Whether or not your ward may have a driver s license or travel What social environment and social life your ward may have What, if any, education or training your ward may have What sort of medical care decisions you may make for your ward NOTE: In general, guardians with medical decision-making power have the right to make routine and some major health care decisions for their wards (such as agreeing to surgery) but a guardian s powers are limited when it comes to end-oflife decisions, except for Do Not Resuscitate Orders, also called DNR Orders that the patient s doctor may consider in the patient s best interest. Do Not Resuscitate Orders are medical judgments that the patient would not benefit from resuscitation when his or her heart stops or when he or she stops breathing. (Resuscitation is usually considered not to be helpful any longer when the patient is dying.) Your Order and Judgment explains what your powers are when it comes to health care decisions. (2 of 3)11/20/2011 9:24:04 AM

69 Can I ask the Judge to change the Order and Judgment? Yes, if you believe that a change is needed and have a good reason, you can always ask the judge for a change. For instance, if you think that your ward must be moved to another residence or facility, or needs other services and interventions that are not listed in the original Order and Judgment, you should discuss this with your lawyer or you may write the judge yourself or call the judge s law clerk. You should explain why you are asking for the changes - the judge must approve them before you can make the changes. State Justice Institute Guardian Assistance Network Kings County Supreme Court 360 Adams Street, Room 723 Brooklyn, NY (347) GAN@courts.state.ny.us [35] Guardian Assistance Network Copyright 2008 Vera Institute of Justice, Inc. A demonstration project of the Vera Institute of Justice, Inc. (3 of 3)11/20/2011 9:24:04 AM

70 Take away any powers or rights from your ward that the judge has not approved beforehand Sell your ward s real estate or keep your ward s real estate in your own name rather than in your ward s name Combine your own money with that of your ward, even if you had a joint bank account with your ward before the guardianship Use your ward s funds for your own purposes, or borrow from your ward [36] Guardian Assistance Network The Guardian for Property Management What Is a Guardian? From Court Hearing to Guardianship Commision The First 90 Days: From Commision to Initial Report The Guardian for Personal Needs The Guardian for Property Management The Initial & Annual Reports Ending a Guardianship Español If you are Guardian for Property Management, you must now start to manage the income and assets of your loved one. Taking control of your ward s property is called marshalling the assets. In general, the rule about managing another person s assets is to be very careful in how you spend or invest your ward s money. Newly appointed Guardians for Property Management have distinct responsibilities that are different from Guardians for Personal Needs. Before you start working on the various tasks you might want to review the Order and Judgment. This document is your guide. NOTE: Whenever you do business for your ward, you must bring a certified copy of your Order and Judgment and Commission with you to prove that you are authorized by the court to act on behalf of your ward. Things Guardians for Property Management May Not Do Guardians Must Spend Their Ward s Money Wisely Detailed Tasks of Guardians for Property Management Things Guardians for Property Management May Not Do Guardians for Property Management are limited in what they are allowed to do by the Order and Judgment. Below are examples of things guardians may not do without court approval: (1 of 8)11/20/2011 9:24:37 AM

71 Guardians Must Spend Their Ward s Money Wisely Guardians are supposed to spend their wards money wisely and make it last as long as possible. Without the judge s prior approval you should be careful about buying very expensive items for your ward, even if you think that your ward has enough money to pay for it or deserves it. [37] Guardian Assistance Network Make investments that are risky Hire professionals or special experts, for example an accountant to file income tax returns, unless the judge has given you permission to do so Revoke a will, power of attorney, or other contract that your ward made before you were appointed NOTE: If you believe that you have a good reason to do something that is not listed in the Order and Judgment, for instance, if you have to manage substantial assets, you may want to ask the court for permission to hire an investment broker or other financial manager to help you. You should contact your lawyer if you have one and ask for advice or ask the judge s law clerk for guidance by explaining why you believe that the Order should be changed. Examples of such major expenses are: Rebuilding your ward s home to make it wheelchair accessible Buying a special van to transport your ward Trying some alternative medical treatment for your ward that is not likely to be covered by your ward s medical insurance Taking an expensive vacation with your ward NOTE: When you are thinking about buying something very expensive your ward needs or could benefit from, you should get it approved ahead of time by the judge. If you don t get prior approval, the court examiner, who reviews all reports, may not approve of the purchase of the item and demand that you pay this expense out of your own funds. (2 of 8)11/20/2011 9:24:37 AM Detailed Tasks of Guardians for Property Management The authors are indebted to Leona Beane, Esq. who developed the list of tasks described in this section and gave permission to adapt the list for this manual. Establishing a Guardianship Checking Account Identify all bank accounts owned by your ward (checking, savings, money market, etc.). Divide any joint accounts and separate your ward s share from it. Close your ward s accounts and open a

72 [38] Guardian Assistance Network guardianship checking account with your ward s Social Security Number on it and with your name as Guardian in the title. Example: The Guardianship Account Joe Smith became the guardian for his wife Jane, who has Alzheimer s disease. Although the couple always had a joint bank account, now that Joe has become Jane s guardian, he must open a separate bank account for his wife. This new account has Jane s social security number on it but the account is in Joe s name as guardian for an incapacitated person. Here is how the account is titled: Joe Smith as Guardian for Jane Smith, an Incapacitated Person. Note: If your ward had arranged for direct deposit of income checks (Social Security, SSI, VA checks, and pensions) you need to open the Guardianship Account first and then request that the income checks be re-directed from the old account into the Guardianship Account. Once the checks are being deposited into the new account you can close the old one. Identifying Sources of Income Identify all sources of your ward s income: pension benefits; rental income from tenants; interest income from investments; Social Security Income; Supplemental Security Income; veteran s benefits. Make a list, describing each source and the monthly amount your ward receives and arrange for all income to be deposited into the guardianship account. If any public benefit checks are missing, arrange for the checks to be reissued. Identifying Your Ward s Eligibility for Public Benefits If your ward does not currently receive public benefits but may be eligible, you must apply for them on behalf of your ward. Arranging for Pre-need Burial Expenses If your ward receives Supplemental Security Income or Medicaid or if you are applying for these benefits or are engaged in Medicaid Planning, you are permitted to open a separate Guardianship savings account with no more than $1,500 as a special burial account. This account may generate interest and grow over time but you may never use it during your ward s lifetime it is a set aside for your ward s future funeral expenses. In addition to a separate burial savings account, you also may obtain an irrevocable burial trust, arrange for a pre-paid funeral with a funeral home, or purchase a cemetery plot. You may want to discuss this with the judge s law clerk before you make the decision and spend your ward s funds. (3 of 8)11/20/2011 9:24:37 AM

73 [39] Guardian Assistance Network NOTE: Medicaid Planning is the process of preparing to apply for Medicaid with the assistance of an attorney who is a specialist in Medicaid law. See Spending Down Your Ward s Assets below. Becoming Representative Payee for Government Income Checks If your ward receives Social Security benefits or Supplemental Security Income you should apply to be appointed Representative Payee (for VA benefits the Representative Payee is called Fiduciary ) and have the checks automatically deposited into the guardianship account. If your ward lives in a nursing facility or a residence for people with disabilities, you may prefer to have the facility or residence become Representative Payee. That way the nursing home will receive the money and you don t have to manage it and pay the nursing home each month. Example: The Nursing Home as Representative Payee Mary Elkins and her disabled brother John have lived together for many years. Ever since she turned 65, Mary had the Social Security Administration deposit her Social Security check and John s SSI check into a joint bank account. Now that John has been placed in a nursing home and Mary has become John s guardian, either Mary or the nursing home can apply to the Social Security Administration to become John s Representative Payee. If the nursing home becomes the Representative Payee the nursing home will use the money for John s monthly nursing home cost and will then apply for additional Medicaid coverage. Mary will only gain access to John s Medicaidapproved personal allowance to be used for John s personal needs. This arrangement will make managing John s funds very easy for Mary. Paying Bills You must assess your ward s monthly expenses and arrange to have these met. Include payments for rent, food, clothing, pet care, housekeeping and personal care providers, social activities, educational programs, medical expenses, and care of dependents (if ordered by the judge). Request that all recurring bills (such as those for utilities and rent) be re-directed to you so that they can be paid in a timely fashion. Identify non-recurring bills and arrange for payment. Examples of non-recurring bills are doctor s bills, payroll taxes and related expenses for household employees. You may set up a local account with a grocery store or arrange for petty cash for homecare workers to make your life a little easier. If your ward is able to manage a small amount of money you may arrange for weekly spending money so that he or she still has some independence. (4 of 8)11/20/2011 9:24:37 AM

74 [40] Guardian Assistance Network NOTE: You should always pay by check rather than cash since it is extremely difficult to account for cash payments when you write your reports to the judge. If you need to pay by money order, write down on the receipt what the payment was for. And, if you must pay with cash ask that the recipient sign a receipt for you. Paying Outstanding Debts Identify all current debt and arrange for payment. Include court ordered payments to various professionals who were involved in the guardianship process. Check your Order and Judgment for the names of the people who must be paid and the amount of their fees. If your ward receives Social Security benefits or Supplemental Security Income and has no financial assets, your first obligation is to ensure that your ward s monthly expenses are covered, such as for shelter, food and clothing. Guardians should advise all creditors that their wards are not capable of paying their outstanding debt by sending the creditor a letter explaining the ward s situation and the fact that you are now Guardian and Representative Payee for your ward. Click here for a a sample letter to creditors. NOTE: Creditors can usually gain access to your ward s income before you can. However, creditors cannot gain access to your ward s government income checks. Furthermore, if your ward had received an overpayment from Social Security or SSI, and must pay the overpaid amount back to the Social Security Administration you should negotiate a monthly payment that is as small as possible so that you can pay your ward s ordinary monthly expenses without too much hardship. Arranging For Your Ward s Mail to Be Re-Directed To You Personal mail can just be forwarded to you but official mail like bills and other statements should be addressed to you as guardian for [your ward s name], similar to the title on the guardianship account. Finding Bank Accounts with Help from the IRS Example: Looking for Bank Accounts Rudi Johnson received his Commission to act as guardian for his Uncle Jacob a week ago. Since his uncle always was secretive about his finances Rudi has no idea how much money his uncle has and where his bank accounts are located, but he wants to be sure that his uncle s funds are safe from people who have abused Uncle Jacob in the past. The first thing Rudi must do is to find Uncle Jacob s bank accounts and close them so that Uncle Jacob and the people who took advantage of him, no longer have access to the money. (5 of 8)11/20/2011 9:24:37 AM

75 [41] Guardian Assistance Network One of the most difficult tasks guardians usually face is to find all the assets and sources of income of their ward. A good source of help for guardians is the Internal Revenue Service, which regularly receives information on all tax payers who own bank accounts or who have income from wages, pensions, or investments. If you think your ward may have bank accounts you cannot find, you may fill out IRS Form 4506T (Request for Transcript of a Tax Return). Check item #8 on the Form. After about two months the IRS will send you a report on all banks and other financial institutions that have submitted financial information to the IRS on accounts owned by your ward. There are also private agencies that will do this faster for a fee. NOTE: IRS forms are available through its website: or by calling Whenever you mail a letter or form to the IRS you should attach a copy of your certified Guardianship Commission and sign your letter or form as Guardian. Locating Other Unclaimed Property In addition to searching for your ward s active bank accounts, you may want to search for other unclaimed property that is owned by your ward, such as unclaimed tax refunds, insurance reimbursement, and neglected bank accounts. In New York State you may try state.ny.us. For property in other states you may try the website of the National Association of Unclaimed Property Administrators, www. naupa.org. Looking For Safe Deposit Boxes Check with the bank to find out if your ward had a safe deposit box and arrange with the bank to make an inventory of its contents. If the safe deposit box is jointly held with someone else, separate your ward s valuables from those of the other person and rent a separate box for your ward. NOTE: You should check your Order and Judgment to see if the judge ordered you to check the contents of a safe deposit box. If it is not in the original Order you may need a special court order to gain access to the safe deposit box. Locating Insurance Policies Identify all insurance policies; make a list and include the name of the company and the policy number. Policies may include household, valuable items, liability, life, fire, auto, long term care, and medical insurance. Notify the companies of your guardianship appointment and request that all correspondence be re-directed to you. Identifying All Investments Identify all stocks, bonds, mutual funds, and investment accounts your (6 of 8)11/20/2011 9:24:37 AM

76 [42] Guardian Assistance Network ward may have established in the past. Make a list of each with the name of the security, policy number, and current value. Notify all companies of your guardianship appointment (send them a copy of your Certified Commission) and request that all correspondence be redirected to you. If your ward s assets are complicated, request permission from the judge to hire an investment broker or accountant to manage your ward s assets. If stock certificates cannot be located, arrange for an indemnity bond. Identifying Valuable Personal Items Identify all valuable property at your ward s home: include jewelry, art, fine rugs, coins, stamp collections, silverware, and cash. You should have the items appraised for their estimated value and if they are not insured, you should insure them. Make sure that you make a list of all of the items. Looking For Valuable Documents Search for important documents among your ward s papers. Look for a will, a health care proxy, a living will, a power of attorney and anything else you think may be important. Put these documents in a safe place. Locating Real Property Identify any real estate owned by your ward and file a Statement Identifying Real Property with the Property Recording Office of the county where the property is located. These documents must be signed by you in front of a Notary Public. Real property must be kept in your ward s name. If your ward owns a co-op apartment you must notify the Co-op Board of your appointment and ask to have any mail re-directed to you. (Click here for a sample of a Statement Identifying Real Property.) NOTE: If you wish to sell the property you must first get permission from the judge. Before you sell the property the judge may want it to be appraised by an appraiser who is listed on a court approved list and the judge will establish the fee for the appraiser. Filing Tax Returns File federal, state and local tax returns before April 15th of each year. If you cannot file your ward s taxes on time you may file for a six months extension, using IRS Form 4868, called an Application for Automatic Extension of Time. Tax returns must be filed in your ward s name and social security number, but they must be signed by you as Guardian for [name of your ward], an incapacitated person. You should attach a copy of your certified Commission to the tax returns you file for your ward. If your ward missed filing tax returns in previous years the IRS will notify you and demand that these be filed (7 of 8)11/20/2011 9:24:37 AM

77 State Justice Institute Guardian Assistance Network Kings County Supreme Court 360 Adams Street, Room 723 Brooklyn, NY (347) [43] Guardian Assistance Network as soon as possible. Request that the IRS waive penalties for late filing and send the IRS a copy of your Certified Commission to show that your ward is an incapacitated person and was incapable of filing taxes previously. NOTE: If you need help with your ward s taxes you should ask permission from the judge to hire an accountant. If the judge approves your request, the judge will set the accountant s fee which then can be paid out of your ward s assets. Spending Down Your Ward s Assets As you are spending your ward s assets on his or her care you must make a plan for your ward s future financial needs. This may require you to engage in Medicaid planning if your ward s assets are close to being depleted. You should discuss Medicaid planning with an elder law attorney familiar with Medicaid. Medicaid is an important medical insurance program that covers extensive home care and nursing home care for New Yorkers who have depleted their assets and have become indigent. (Click here for more information on Medicaid.) Copyright 2008 Vera Institute of Justice, Inc. A demonstration project of the Vera Institute of Justice, Inc. (8 of 8)11/20/2011 9:24:37 AM

78 [44] Guardian Assistance Network The Initial & Annual Reports What Is a Guardian? From Court Hearing to Guardianship Commision The First 90 Days: From Commision to Initial Report The Guardian for Personal Needs The Guardian for Property Management The Initial & Annual Reports Ending a Guardianship Español All guardians must regularly report to the court. These reports give the court information about your ward and how well you are taking care of your ward s affairs, what your plans are for your ward, how much money your ward has, and anything else that gives the judge a good sense that your ward is well cared for. The reports must be written in a court approved form. Copies of forms are located in Resources and additional copies can be obtained from the Guardianship Part or the Court Clerk in your courthouse. The Initial Report is the first report you must write 90 days after you received your Commission. This report is meant to be a picture or snapshot of your ward s situation at the beginning of the guardianship. (Click here for a sample an Initial Report.) The Annual Report, sometimes called the Annual Accounting is always due in May and covers the previous calendar year from January 1 through December 31. The period between the Initial Report and the Annual Report is the time in which you continue to care for your ward according to the judge s orders and the plans you outlined in your Initial Report. (Click here for a sample of an Annual Report.) What Information Must Be Included In The Reports? Asking For Reimbursement of Your Out-Of-Pocket Expenses Asking for Changes in the Guardian s Power Can Guardians Ask For Changes at Any Other Time? Who Should Receive My Initial or Annual Reports? What happens to the Reports after I file them? The Initial Report (1 of 8)11/20/2011 9:25:10 AM

79 What Information Must Be Included In The Reports? The judge will want to know that your ward is in good hands and that you are doing everything for your ward the way the judge had ordered. When you prepare to write your reports, you should first re-read the Order and Judgment so that you know exactly what the judge has given you the power to do and then start filling in the sections listed in the report forms. (This is the time where you will find that you will greatly benefit from having made personal notes and having kept receipts and all statements, invoices and bills.) Asking For Reimbursement of Your Out-Of-Pocket Expenses In your reports you may ask for reimbursement of expenses you have paid out of your own funds on behalf of your ward. Below are some examples of expenses for which you may be reimbursed, but you can only get reimbursed if you kept the receipts and if your ward has assets. Lost wages while you were taking care of your ward s affairs The fee you paid to attend the required guardianship training Taxi fares, gas, mileage, or parking for your car to take your ward to the doctor or any other appointment The cost to photocopy papers and have them certified The cost of obtaining a bond, if the judge ordered you to get one Any payments you have made from your own funds to buy supplies and services for your ward for which you have saved the receipts Asking for Changes in the Guardian s Power The time to ask for a change in the Order and Judgment is when you submit your Initial or Annual Report. Changes may be needed in the Order and Judgment over time for any number of reasons. For instance a person, who was hurt in an accident may recover and be able to do more things for him or herself. In that case the Guardian s powers could become less over time. On the other hand, some wards become more frail over time and may be less able to manage some of their affairs - in that case, the Order may be changed to give the guardian additional powers that are needed. [45] Guardian Assistance Network The Annual Report NOTE: Most guardians find that some sections of the report forms are not relevant in their particular ward s case. If you don t fill out a section because it does not apply, you should write in that section the words: NOT APPLICABLE. Never leave a section in the form blank. (2 of 8)11/20/2011 9:25:10 AM

80 If you have good reasons to ask the judge for a change in your powers and you have a lawyer you should ask him or her to write a request to the judge giving all the reasons why you think the change in the Order and Judgment is needed. But family guardians without a lawyer may write the judge themselves to ask for a change in their powers. Before you write the judge you may want to call the judge s law clerk and explain what it is you would like to do law clerks can be very helpful to you since they work closely with the judge and assist the judge with all legal questions and issues. If you don t have good reasons for the changes you request, or if the judge disagrees with you because he or she feels that your plan is not in the best interest of your ward, the judge will not approve them. [46] Guardian Assistance Network Example: The Judge s refusal to change the Order and Judgment Three years ago Donald was appointed guardian for Personal Needs and Property Management for his mother, Millie, who lives in her own apartment in Brooklyn. Millie is doing very well, especially now that she has a home attendant three times per week. Two years ago Donald moved with his new wife to Long Island. He now wants to move Millie to an assisted living residence near his home. Having Millie nearby will make it much easier for Donald and his wife to supervise home care aids and to visit his mother frequently. Donald has asked for a change in the Order and Judgment, permitting him to move Millie to Long Island. But there is a big problem: since Millie is very happy in her apartment in which she has lived for many years and because she likes the home attendant, she does not want to move. Because the law requires that wards must be consulted about where they want to live, the judge decides that Millie should not be moved and denies Donald s request to change the Order and Judgment. (3 of 8)11/20/2011 9:25:10 AM Can Guardians Ask For Changes at Any Other Time? Yes, most judges will permit guardians who have an emergency to write a letter explaining why the Order needs to be changed and asking for the judge s approval before the reports are due. Before you write the judge you should call the judge s law clerk and ask him or her for guidance. Example: Changing the Order and Judgment in an Emergency John is his mother June s guardian for Personal Needs. His mother still lives in her own apartment but she has advanced cancer in addition to her dementia. June s doctor has advised John that his mother must be placed in a nursing home to receive care from nurses and other specialists and have access to medicines to control her pain. The judge s Order and Judgment does not give John

81 [47] Guardian Assistance Network the power to place his mother in a nursing home. However, John does not have to wait until the time he has to submit his Annual Report. John can write the judge a letter asking that the judge change the Order now so that June can be admitted to the nursing home immediately. Who Should Receive My Initial or Annual Reports? Once you have finished writing either one of the reports you must sign it in the presence of a Notary Public. The notarized copy must be filed with the office of the county clerk. You should either hand deliver the original report to the county clerk or mail it by certified mail, return receipt requested. You should also mail a photo copy of the report to: The court examiner who has been assigned to your ward s case. The court examiner s name is usually located in the Order and Judgment, but if it is not you can contact the county clerk s office to find out who the court examiner is for your ward s case. Your ward, unless the judge ordered you not to do so in the Order and Judgment. The court evaluator who reported to the court during the hearing (Initial Report only). Any attorney who represented your ward at the hearing (Initial Report only). The bond company, if you were required to get a bond (Annual Report only). If your ward lives in a home for people with disabilities, or another similar type of residence, you must send a copy of the report to the administrator of the residence. If your ward lives in a mental health facility, you must send a copy of the report to the Director of Mental Hygiene Legal Services. In Brooklyn, Queens and Staten Island this person is: Sidney Hirschfeld, Director Second Judicial Department, Mental Hygiene Legal Services 170 Old Country Road Mineola, NY In Manhattan and the Bronx this person is: Marvin Bernstein, Director First Judicial Department, Mental Hygiene Legal Services 60 Madison Avenue, 2nd Floor New York, NY (4 of 8)11/20/2011 9:25:10 AM

82 The Initial Report The Initial Report is also called the 90-day Report since it must be submitted 90 days after the day that you received your Commission. What type of guardian you are for personal needs, property management, or both Whether you have completed a guardianship training program (you must attach a copy of the certificate of attendance to your report) Your ward s age and where your ward lives The name of the facility or residence where your ward lives, if your ward does not live at home How often you have visited your ward during these first 90 days you must have visited at least once A list of important documents you have found that your ward signed in the past, such as power of attorney, a will, a health care proxy, or a living will What plans you have to take care of your ward in the immediate future Whether there have been changes in your ward s situation since the hearing The names and addresses of your ward s personal doctor and psychiatrist or psychologist The doctors diagnosis A list of other professionals or service agencies that provide services to your ward (home care agencies, meals on wheels, social services). You should list [48] Guardian Assistance Network What happens to the Reports after I file them? All reports are reviewed by the court examiner who must make sure that the reports present information on all the tasks that were listed in the original Order and Judgment and that the accounting of how you spent your ward s funds is accurate and acceptable. You may be asked to change the report if the court examiner believes that changes are needed. The court examiner may also call you and ask you questions by phone or ask you to come to his or her office. After the court examiner has approved your report he or she will send a summary to the judge. All Guardians Must Include The Following Information In The Initial Report: Guardians for Personal Needs Must Provide the Following Information: (5 of 8)11/20/2011 9:25:10 AM

83 Bank accounts your ward owned at the time of your appointment as guardian (include the name of the bank, the account number and the amount of money in each account) Whether you have opened a Guardianship Account A list of stocks, bonds, other securities that you have found, and whether you have changed the title of the accounts to your name as guardian A list of any other funds you have found, where they were located, what their value is, and what you have done with these funds A list of other personal property such as a car, furniture, jewelry, and artwork with a description, their location, and their value A list of real property your ward owns including the location, the type of property it is, and its value A list of the sources of your ward s monthly income, including the source and the amount each month A list of other income, such as interest or dividends A list of any debts or unpaid bills, including who needs to be paid and how much Any public benefits you have applied for Whether you have applied for insurance on behalf of your ward Your ward s insurance policies (medical, longterm care, homeowner s, auto, valuable items, art work, life insurance) Whether your ward has a safe deposit box, including the name of the bank, the address, and whether or not you have been able to see its contents and determine their value [49] Guardian Assistance Network each one with an address and phone number A list of day care programs your ward attends regularly with their names and phone numbers A list of medications your ward is currently taking Guardians for Property Management Must Provide Detailed Financial Information on: NOTE: When you submit your report you should attach all receipts, invoices and bank statements so that the court examiner can easily review how you have spent your ward s money. The Annual Report NOTE: The Annual Report is always due in May and covers the previous calendar year (January 1 through December 31). Of course, for your very first Annual Report you are only expected to provide information covering the period starting with the date you received your Commission through December (6 of 8)11/20/2011 9:25:10 AM

84 The dates (at least four a year) you have visited your ward and where you saw your ward. Any big changes you have observed in your ward s situation or condition since the last report. When your ward last saw a doctor. Include the reason for the visit and the doctor s diagnosis and treatment plan (if there is one). A report on the condition of the ward from a professional (doctor, psychologist, nurse clinician, or social worker) who has examined or evaluated the ward in the three months prior (February, March, or April) to the submission of the Annual Report. Facts on which any change in your powers might be based, including ending of the guardianship. A list of medical treatments your ward received since the last report. Your plan to take care of your ward s medical, dental, and mental health needs for the next year. Information about the social condition of your ward, including what social and personal assistance he or she has received and what your ward s social skills and social needs are. A copy of the federal, state, and local tax returns you filed for your ward before April 15 of the same year. A detailed accounting of all income received and all expenses paid. Whether your ward was employed or whether he or she has earned wages that you have received on behalf of your ward (this applies usually to people with disabilities who are employed in supervised job situations). A request for reimbursement for out-of-pocket expenses you have had while taking care of our ward s affairs. A request for your compensation or fee, also called commission, if the judge had ordered it in your Order and Judgment (you are not obligated to get payment but you may accept it if the judge had ordered it). [50] Guardian Assistance Network All Guardians Must Provide The Following Information In The Annual Report: Guardians for Personal Needs Must Also Include: Guardians for Property Management Must Include: (7 of 8)11/20/2011 9:25:10 AM NOTE: When you write your Annual Report you should make sure that the amounts add up properly so that the court examiners will not find fault with your report. You should attach any vouchers, bank statements, and any other documents that you can provide to show proof of the information you have provided.

85 State Justice Institute Guardian Assistance Network Kings County Supreme Court 360 Adams Street, Room 723 Brooklyn, NY (347) [51] Guardian Assistance Network Copyright 2008 Vera Institute of Justice, Inc. A demonstration project of the Vera Institute of Justice, Inc. (8 of 8)11/20/2011 9:25:10 AM

86 If you were your ward s Guardian for Property Management your obligation to manage your ward s funds is now greatly reduced - from now on you are only allowed to pay some outstanding bills for services rendered while your ward was still alive (for instance homecare expenses), the annual premium for the bond which remains in effect until you are officially discharged, and your wards funeral bills. All other financial management tasks must be turned over to the executor of your ward s estate or to the Public Administrator, if you ward did not have a will. [52] Guardian Assistance Network Ending a Guardian All Guardians eventually must come to an end. Of course, there are several reasons why Guardians must end. Examples are: What Is a Guardian? From Court Hearing to Guardianship Commision The First 90 Days: From Commision to Initial Report The Guardian for Personal Needs The Guardian for Property Management The Initial & Annual Reports Ending a Guardianship Español The ward has died The ward no longer needs a guardian The guardian has a personal reason (for example, is moving to another state) or is no longer able to perform all the duties that are required The judge wants to end the Guardian because he or she is dissatisfied with the guardian NOTE: Whatever the reason is for ending the Guardian, you may not just stop on your own. In order to formally end your responsibilities you must ask the judge to discharge you and ask for permission to submit a final accounting. If your ward has died you must send the judge a copy of the Death Certificate. You must also inform all other relevant parties such as: the Social Security Administration or the Veterans Administration, your ward s pension plan, Medicaid if your ward was receiving Medicaid benefits, the executor of your ward s estate or the Public Administrator, if your ward did not have a will, and of course next of kin. All parties should be sent a copy of your ward s Death Certificate. (1 of 2)11/20/2011 9:26:23 AM The Final Accounting Guardians for Property Management must file a report which is called a Final

87 The court examiner Every one that received your Annual Reports The executor or administrator of your ward s estate The Office of Legal Affairs of the Human Resources Administration if your ward received Medicaid services State Justice Institute Guardian Assistance Network Kings County Supreme Court 360 Adams Street, Room 723 Brooklyn, NY (347) GAN@courts.state.ny.us [53] Guardian Assistance Network Accounting which has to cover financial information covering the period between the end date of your last Annual Report and the date of your ward s death. You should include a request for any reimbursement or payment that is still outstanding. Click here to view sample of a Final Accounting form. Who should receive a copy of the Final Accounting? The original Final Accounting Report is filed with the county clerk and copies of it must be submitted to: After the court examiner has evaluated and approved the Final Accounting, the judge will issue an Order discharging you as guardian. The judge will also decide who will be paid from any funds that remain in your ward s estate. NOTE: The bond will not be terminated until after the Final Accounting has been filed and the court examiner has approved it. Once the judge has issued an Order discharging you as guardian, you may send the bonding agency a copy of the judge s Order and ask that the bond be terminated. Copyright 2008 Vera Institute of Justice, Inc. A demonstration project of the Vera Institute of Justice, Inc. (2 of 2)11/20/2011 9:26:23 AM

88 [54] Guardian Assistance Network Directory for Guardians Español Services for People over the Age Of 60 Organizations for Specific Diseases & Conditions Services for People with Mental Retardation and Developmental Disabilities Services for People with Mental Disabilities Services for People over the Age Of 60 List of Offices Bonding Agencies Medical Terminology & Abbreviations Caring for Mentally/ Physically Disabled Medicare Medicaid in NYS Directory for Guardians Mental Illness/ Assisted Outpatient Treatment Glossary New York State Office for the Aging Hot Line: (800) or (518) New York City Department for the Aging Helpline: (212) (English and Spanish) OR Dial 311 and ask for social services specialist for the aging. and click on Benefit Quick Check New York State Health Resources and click on aging New York State Health Insurance Information, Counseling and Assistance Program (NYSHIICAP) For counseling on Medicare and other health insurance programs Toll-free Hotline: (800) Medicare Rights Center For help with Medicare problems Phone: (212) New York State Medicaid Toll-free Helpline: (800) (1 of 5)11/20/2011 9:27:07 AM

89 United Way of New York City To find addresses of various social service agencies Phone: (212) Click on AGING in target groups and fill in your ward s zip code to find services near your ward s home. National Association of Geriatric Care Managers, Greater New York Chapter To find social workers in private practice who assist older persons and their families [55] Guardian Assistance Network New York State Long Term Care Ombudsman For help on problems related to nursing home care and services From within New York State: From outside New York State: Friends and Relatives of the Institutionalized Aged For information on nursing homes or concerns about a ward s care in a nursing home Helpline: (212) Tuesdays-Fridays 10AM 5PM info@fria.org or National Family Caregivers Organization Toll Free: National Academy of Elder Law Attorneys (NAELA) For the names of attorneys who specialize in elder law and Medicaid Planning Click on locate and elder law attorney for Specific Diseases and Conditions Organizations National Alzheimer s Association Toll-free 24-hour Helpline: (800) or Info@alz.org En Español: New York City Chapter Alzheimer s Association 24-hour Helpline: (800) United Cerebral Palsy Toll-free: (800) or webmaster@ucp.org United Cerebral Palsy of New York City Phone: (212) , Ext New York State Dept. of Health HIV/AIDS (2 of 5)11/20/2011 9:27:07 AM

90 New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) For information on services for the mentally retarded or those with developmental disabilities. New York City Regional Office phone: (212) Albany (statewide) phone: (518) or TDD: (518) (Click on Information for Individuals and Families, General Information and Publications, and Map and Resource Directory ). [56] Guardian Assistance Network Toll-free Confidential Hotline: (800) 541-AIDS New York City AIDS Hotline Phone: (212) , Ext. 4 Gay Men s Health Crisis (GMHC) Help for men and women Toll-free Confidential Hotline (800) AIDS-NYC or (212) or Hotline@gmhc.org (there is a two-week response time) En Español: Brain Injury Association of New York State Toll-free Family Helpline: (800) National Multiple Sclerosis Society Toll-free: (800) En Español: MS Society New York City Chapter Phone: (212) or info@msnyc.org/ Parkinson s Disease Foundation Toll-free: (800) American Stroke Association Toll-free: (800) 4-STROKE or (888) (to find local chapters) American Council on Alcoholism Toll-free: (800) Services for People with Mental Retardation and Developmental Disabilities (3 of 5)11/20/2011 9:27:07 AM New York State Commission on Quality of Care

91 New York State Commission on Quality of Care and Advocacy for People with Disabilities Toll-free phone: (800) (Voice/TTY/Spanish) [57] Guardian Assistance Network Toll-free phone: (899) (Voice/TTY/Spanish) New York State Office of Advocacy for People with Disabilities Toll-free phone: (800) (Voice/TTY/Spanish) New York State Association for Retarded Children (NYSARC) Phone: (518) (click on our chapters for local offices) or Association for the Help of Retarded Children New York City (AHRC-NYC) Phone: (212) (click on links for many resources, NYC and beyond) National Institute for People with Disabilities YAI YAI Link Services: (212) Services for People with Mental Disabilities New York State Office of Mental Health (OMH) 44 Holland Avenue, Albany, New York Toll-free phone: (800) (leave name, phone number, and question) NYS Assistance for Outpatient Treatment and Facility Contacts OMH Customer Service: (800) NYS Conference of Local Mental Hygiene Directors to find local directors 99 Pine Street, Albany, NY Phone: (518) Mental Hygiene Legal Service Manhattan and Bronx: (212) Brooklyn, Staten Island, Queens, and Long Island: (516) (4 of 5)11/20/2011 9:27:07 AM Office for Protection and Advocacy for Individuals with Mental Illness Toll-free phone: (800) or Albany Number: (518)

92 [58] Guardian Assistance Network Office of Advocacy for People with Disabilities Toll-free phone: (800) (Voice/TTY/Spanish) Coalition of Behavioral Health Agencies Phone in New York City: (212) or Use Form National Alliance on Mental Illness (NAMI) Family Helpline: (800) (New York State only) New York State Chapter Helpline: (212) (New York City Metro Chapter) (Noon to 7PM Monday through Thursday and noon to 6PM on Friday) or State Justice Institute Guardian Assistance Network Kings County Supreme Court 360 Adams Street, Room 723 Brooklyn, NY (347) (5 of 5)11/20/2011 9:27:07 AM

93 New York County Supreme Court [59]

94 Untitled Document Page 2 of 2 11/20/2011 New York County - Civil Branch Guardianship Cases ADMINISTRATIVE ORDER -- GUARDIANSHIP PROCEEDINGS (December 4, 2008) OVERVIEW OF GUARDIANSHIP PROCEEDINGS (Explaining Key Features of these Cases, Duties of Guardians, Key Terms, etc.) OUTLINE OF FILING AND OTHER COURT PROCEDURES IN GUARDIANSHIP CASES (Explaining How Papers Are Filed and Processed in Court) OUTLINE OF COURT RULES ON FIDUCIARY APPOINTMENTS AND THE FIDUCIARY CLERK (Explaining Court Rules Governing Guardianship and Other Fiduciary Appointments and the Role of the Fiduciary Clerk) A MESSAGE FROM THE FIDUCIARY CLERK FORMS FOR GUARDIANSHIP CASES LIST OF TRAINING PROGRAMS FOR GUARDIANS [ Court Offices and Functions ] [ Summary of Courthouse Procedures ] [ Justices ] [ Rules of Justices ] [ County Clerk ] [ E-Filing ] [ Public Access & Courthouse Technology ] [ ADR Programs ] [ Appellate Term ] [60]

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109 Untitled Document [Home] New York County - Civil Branch Guardianship Cases - Forms ORDER AND JUDGMENT APPOINTING GUARDIAN GUARDIAN S INITIAL (90-DAY) REPORT AND INSTRUCTIONS (The First Report Required to be Filed by the Guardian followed by Instructions on How to Complete It) ANNUAL REPORT OF THE GUARDIAN FORMS FOR PROCEEDING FOR AN ORDER RELEASING AND DISCHARGING GUARDIAN - ON CONSENT Petition Order Waiving Filing of Formal Account Order Discharging Guardian and Surety Consent to Informal Account FINAL REPORT Order to Show Cause to Settle a Final Report Final Report (Sample) Order Settling and Approving a Final Report Affidavit in Support of Discharge of Guardian and Cancellation of Bond Order Discharging Guardian and Surety [ Court Offices and Functions ] [ Summary of Courthouse Procedures ] [ Justices ] [ Rules of Justices ] [ County Clerk ] [ E-Filing ] [ Public Access & Courthouse Technology ] [ ADR Programs ] [ Appellate Term ] [75] (1 of 2)11/20/2011 9:35:25 AM

110 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IAS Part No. IN THE MATTER OF THE APPLICATION OF FOR THE APPOINTMENT OF A GUARDIAN FOR, Index No. Petitioner,, INITIAL REPORT OF GUARDIAN An Alleged Incapacitated Person, , the Guardian in this proceeding, submits this Initial Report of Guardian pursuant to Mental Hygiene Law and states as follows: 1. I reside at. My telephone number is. I was appointed guardian of the person [or property or person and property] of [THE INCAPACITATED PERSON] by Order and Judgment of the Honorable, Justice of the Supreme Court of the State of New York, dated. I received my commission on. 2. I am not related to the incapacitated person [or I am the incapacitated person s [NAME RELATIONSHIP]]. The incapacitated person s date of birth is. I shall separately provide to the court s Guardianship and Fiduciary Support Office (60 Centre Street, Room 148) the incapacitated person s social security number. 3. I attended the guardianship training course at on [DATE] [ or I did not attend the guardianship training course because ]. I have attached a copy of the certificate evidencing my completion of the course. 4. The incapacitated person is currently living at the following address:. I visited him [ her ] there on the following days:. [76]

111 5. The incapacitated person s primary diagnosis is [Set forth the diagnosis of the IP's medical condition] This statement is based upon [e.g., Doctor s report].. 6. If the incapacitated person lives in an apartment or a house, list here the name and relationship of all other persons living with the incapacitated person:. 7. If the incapacitated person has home care services, describe the services here and state the number of hours a day each such service is provided:. 2 [77]

112 8. The incapacitated person has a [ check all that apply ]: G Will G Living Will G Health Care Proxy G Power of Attorney If you are uncertain as to whether any one of these documents exists, please explain: As to each of the documents listed below, please indicate by marking "Yes," "No," or "NA" [for Not Applicable] whether you have located the document, provided a copy, or filed same with the Surrogate's Court:. Will Determined Location Provided Copy Filed with Surr. Ct. Living Will Health Care Proxy Power of Attorney Other Guardians of the Person Answer the Following Questions: 9. I have taken the following steps to ensure that the Incapacitated person has adequate medical, dental, mental health or other health care services [ PLEASE DESCRIBE ] : 3 [78]

113 . 10. The plan to ensure that the incapacitated person has adequate medical, dental, mental health or other health care services in the future is as follows [ PLEASE DESCRIBE ]:. 11. I have taken the following steps to ensure that the incapacitated person has adequate social and personal services (for example, day care and recreation) [ PLEASE DESCRIBE ]:. 12. I have applied for the following health and accident insurance and government benefits on behalf of the incapacitated person [ PLEASE DESCRIBE ]: 4 [79]

114 . 13. There is no need to modify my powers as personal needs guardian [ or the following changes are necessary in my personal needs powers ] [ PLEASE DESCRIBE]]:. Guardians of the Property of the Incapacitated Person Fill In the Following Information 14. I have marshaled the following assets of the incapacitated person: A.(1) Bank Accounts [list the name of the bank, account numbers and amount of money in the account before you closed the account and transferred the money to a guardianship account] : Bank Account Number Amount 5 [80]

115 (2) Guardianship Bank Accounts [list the name of the bank, account numbers and the amount of money currently in the guardianship bank accounts]: Bank Account Number Amount B. Safe Deposit Box [ if the incapacitated person has a safe deposit box, list the name and address of the bank at which it is located]. Have you inventoried the contents of the safe deposit box? GYes GNo. If yes, attach a list of the contents and the appraisal or the approximate value of the contents. C. Stocks and Securities [ if the incapacitated person owns stocks or other securities, list here 6 [81]

116 the name of the company, number of shares, the market value of each security on the date you received your commission, and the broker ] : Company Name Number of Shares Market Value Brokerage Company Name Type of Bonds etc. Market Value Brokerage D. Real Estate [ list the address of the property, give a description of the property [i.e. store, single family house], approximate value of the property on the date you were commissioned, and name of tenants and rental income, if any. Also, write down the date you filed a statement 7 [82]

117 identifying real property with the County Clerk. ] : Address Description Approx. Value Tenants Rental Statement Income E. Personal Property [ list any jewelry, antiques, paintings, automobiles, or other valuable property or cash and set forth the approximate value ] : Property Type Appraised Value Approx. Value 8 [83]

118 F. Income [ set forth here all sources of income for the incapacitated person, i.e. social security, pensions, etc. and the monthly or annual amount received ] : Source of Income Amount G. Assets Not Yet Marshaled [ list all property owned by the incapacitated person that you have not yet been able to transfer to the guardianship ] : 9 [84]

119 . 15. There is no need to modify my powers as property guardian [ or the following changes are necessary to my powers as property guardian [EXPLAIN] :. 16. I G WILL [ or ] G WILL NOT need help preparing my annual report [ CHECK ONE ]. 10 [85]

120 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK), being duly sworn, states as follows: I am the guardian for the above-named incapacitated person, having been duly appointed by Order and Judgment of the Supreme Court of the State of New York, New York County. The foregoing Initial Report, including the account and inventory therein, contains, to the best of my knowledge and belief, an accurate statement of the facts set forth, as well as a full and true statement of all my receipts and disbursements on account of said person and of all money and other personal property of said person which have come into my hands or have been received by any other persons by my order or authority or for my use as guardian since my appointment, and of the value of all property. I do not know of any error of omission in the report to the prejudice of the incapacitated person. Sworn before me this day day of, 20 Guardian Notary Public or Commissioner of Deeds 11 [86]

121 INSTRUCTIONS FOR INITIAL (90-DAY) REPORT This is the report that you must file no later than ninety (90) days after you receive your commission. This report tells the court what you have done so far to help the incapacitated person. To answer Questions 1 through 7, fill in the blanks with the requested information. To answer Question 8, put a circle around all the documents that the incapacitated person has. If the incapacitated person does not have any of the documents, leave this blank. If you are uncertain about the existence of any document, please explain. Also, using Yes, No, or NA [for Not Applicable], please indicate as to each of the listed documents whether you have determined the location thereof, provided a copy, or filed with the Surrogate s Court (e.g., will). If you were appointed a guardian of the person of the incapacitated person, you must answer Questions 9 through 13. If you were only appointed a guardian of the person s property, you should skip these questions. Question 9 Tell the court what you have done so far to provide for the incapacitated person s medical, dental, mental and other health care needs. (For example: I took the incapacitated person to the eye doctor to get new glasses and to the dentist to have a tooth pulled.) Question 10 Tell the court what you plan to do in the future to make sure that the incapacitated person has adequate medical, dental, mental health and other health care. (For example: I will bring the incapacitated person to Doctor X for an annual physical and to Doctor Y, a podiatrist, for special shoes.) Question 11 Tell the court what you have done to make sure that, if feasible, the incapacitated person has an opportunity to be with other people, or work, attend school, or participate in other activities. Question 12 List the government benefits and/or insurance you have applied for on behalf of the incapacitated person (Medicare, Medicaid, etc.). Question 13 If you think you need more powers to meet the personal needs of the incapacitated person, or fewer powers, write down the changes you would like to see made and tell the court why you want them. 12 [87]

122 If the court gave you management powers over the incapacitated person s property, you must answer Question 14, sections A through G, and Question 15. If you are only a guardian of the person, you should not answer these questions. Question 14 (A)(1) List all the bank accounts that the incapacitated person had when you were appointed guardian, the account numbers and the amount in each account. Question 14(A)(2) List all of the guardianship accounts that you set up, the name of the bank where they are located, the account number and the amount of money in each account. Question 14(B) If the incapacitated person had a safe deposit box, provide the requested information. If the incapacitated person did not have a safe deposit box, leave this section blank. Question 14(C) If the incapacitated person owned shares of stock, provide a complete list of all stock, including the name of the company, the number of shares and the market value of the stock on the date you received your commission. If the incapacitated person owned bonds or other types of securities, provide information regarding the type of security and the market value on the date you received your commission. Please also provide the name of the brokerage house holding the stock, bonds, or other securities. Question 14(D) Provide the requested information for all real property owned by the incapacitated person. Question 14(E) Separately list all valuable personal property and provide an appraisal or approximate value if you do not have an appraisal. If the incapacitated person owned ordinary household furnishings and clothing, provide an approximate value for this personal property. Question 14 (F) List all monthly income (for example, social security, pensions and trust income) and the monthly amount the incapacitated person receives from each source. Question 14(G) List all of the assets that the incapacitated person owns that you have not yet transferred into guardianship accounts. Question If you think you need more power over the incapacitated person s property, or less power, write down the changes you would like to see made and tell the court why they should be made. 13 [88]

123 Question 16 If you think you will need assistance preparing the Annual Report, circle will. If you think you can do the Annual Report on your own, circle will not. When you have answered all the questions, bring this report to a notary public and sign the paragraph at the end (the certification paragraph) in front of the notary and then have the report notarized. You must then mail a copy of the report to: Guardianship and Fiduciary Support Services New York Supreme Court 60 Centre Street, Room 201-B New York, NY The Court Examiner named in your appointing Order and judgment. The Incapacitated Person The Court Evaluator named in the appointing Order If the incapacitated person lives in a residential facility, to the director of the facility To Mental Hygiene Legal Services if the incapacitated person lives in a Mental Hygiene Facility If you have any questions, please call the Guardianship and Fiduciary Support Office of the New York County Supreme Court at Thank you. 14 [89]

124 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x IN THE MATTER OF THE APPLICATION OF, Petitioner, FOR THE APPOINTMENT OF A GUARDIAN FOR, an Alleged Incapacitated Person. I.A. Part Index No.: ANNUAL REPORT FOR x I,, residing at, as Guardian for, who was heretofore determined by this court to be an incapacitated person ( IP ), do hereby make, render and file the following Annual Report. On the day of, 20, I was duly appointed Guardian of the above-named person by Order of the Supreme Court of New York County and have continued to act as such fiduciary since that date, giving a bond in the original sum of $,[now in the sum of $, pursuant to subsequent orders,] which is still in force and effect with, as Surety. There has been no change in the Surety thereon, and the Surety is in as good financial standing as when the bond was given. [There has been no change in the Surety thereon, other than as explained in Schedule F.] The following is a true and full account of all receipts and disbursements for the year 20. SUMMARY Schedule A - Principal on hand as of Date of Appointment or Last Annual Report $ Schedule B - Changes to Principal $ Schedule C - Income Received $ Sub-Total $ Schedule D - Paid Disbursements $ [90]

125 Schedule E-1 - Balance of Cash and Securities to be Charged to Next Year's Account $ Schedule E-2 - Real Estate $ Schedule E-3 - All Other Personal Property $ Total Estate $ 2 [91]

126 SCHEDULE A - PRINCIPAL ON HAND AS OF DATE OF APPOINTMENT OR LAST ANNUAL REPORT SOURCE: Name and address of bank or financial institution AMOUNT (i.e., number of shares) TOTAL OF SCHEDULE A $ 3 [92]

127 SCHEDULE B - INCREASES OR DECREASES TO PRINCIPAL (List additional property received, gain or loss on sale or liquidation of stocks or bonds, any net receipts from sale of realty (attach copy of closing statement), etc.) SOURCE AMOUNT TOTAL OF SCHEDULE B $ 4 [93]

128 SCHEDULE C - RECEIVED INCOME AND CASH INCREASES (If any property listed in the last Report has been converted to cash, list here the amount received from the sale and attach an explanation. If the Guardian has used or employed the services of the IP, or if moneys have been earned by or received on behalf of the IP, state details and amounts here (See Par. 9, below)): SOURCE AMOUNT TOTAL OF SCHEDULE C $ 5 [94]

129 SCHEDULE D - PAID DISBURSEMENTS PAID TO AMOUNT TOTAL OF SCHEDULE D $ 6 [95]

130 SCHEDULE E-1 - BALANCE ON HAND AND OTHER PERSONAL AND REAL PROPERTY BANK ACCOUNTS, INVENTORY MARKET BROKERAGE ACCOUNTS, VALUE VALUE PERSONAL PROPERTY, SECURITIES (List names of joint owners, if any, and their relationship to the IP) (List values as of end of accounting period; for securities, list both inventory and market values) TOTAL OF SCHEDULE E-1 $ $ 7 [96]

131 SCHEDULE E-2 - REAL ESTATE List all real estate owned in whole or in part by the IP. State location, assessed value, current market value, amount of mortgage (if any), and the weekly or monthly rental. If property is owned jointly, give names of joint owners and their relationship to the IP. LOCATION ASSESSED MARKET MORTGAGE RENTAL JOINT VALUE VALUE INCOME OWNERS TOTAL OF SCHEDULE E-2 Assessed Value: $ Market Value : $ Mortgages: $ Rental Income: $ 8 [97]

132 SCHEDULE E-3 - ALL OTHER PERSONAL PROPERTY DESCRIPTION INVENTORY/MARKET VALUE TOTAL OF SCHEDULE E-3 $ 9 [98]

133 SCHEDULE F - NAME AND ADDRESS OF SURETY Attach a copy of the latest bond. Also, state and explain any changes in the bond, of the Surety thereon, or in the financial standing of the Surety.) NAME AND ADDRESS AMOUNT BOND NUMBER OF SURETY OF BOND 10 [99]

134 AS TO THE INCAPACITATED PERSON: 1. State the age, date of birth and marital status of the Incapacitated Person. 2. If any are living, list the name and present address of the spouse, children and siblings of the Incapacitated Person. 3. State the present residence address and telephone number of the Guardian. 4. State the present residence address and telephone number of the Incapacitated Person. If the IP does not currently reside at her/his personal home, set forth the name, address and telephone number of the facility or place at which he/she resides, and the name of the chief executive officer of the facility or the person otherwise responsible for the care of the IP. 11 [100]

135 5. State whether there have been any changes in the physical or mental condition of the Incapacitated Person, and any substantial change in medication. 6. State the date and place the Incapacitated Person was last seen by a physician and the purpose of that visit. 12 [101]

136 7. Attach a statement by a physician, psychologist, nurse clinician or social worker, or other qualified person who has evaluated or examined the Incapacitated Person within the three months prior to the filing of this report, setting forth an evaluation of the Incapacitated Person's condition and the current functional level of the Incapacitated Person. 8. If the Guardian has been charged with providing for the personal needs of the Incapacitated Person: (a) Attach a statement indicating whether the current residential setting is suitable to the current needs of the Incapacitated Person. (b) Attach a resume of any professional medical treatment given to the Incapacitated Person during the preceding year. (c) Attach the plan for medical, dental and mental health treatment and related services for the coming year. (d) Attach a resume of any other information concerning the social condition of the Incapacitated Person, including the social and personal services currently utilized by the Incapacitated Person and the social skills and needs of the Incapacitated Person. 9. State whether the Guardian has used or employed the services of the Incapacitated Person, or whether moneys have been earned by or received on behalf of such Incapacitated Person. Provide details in Schedule C. 10. Attach a resume of any other pertinent facts about the care and maintenance of the Incapacitated Person, including the frequency of your visits; whether the Incapacitated Person has made a Will or executed a Power of Attorney; and any other information necessary for the proper administration of this matter. 13 [102]

137 STATE OF NEW YORK ) COUNTY OF ) ) ss.:, being duly sworn, says: I am the Guardian for the above-named Incapacitated Person. The foregoing Annual Report contains, to the best of my knowledge and belief, a full and true statement of all my receipts and disbursements on account of said Incapacitated Person; and of all money and other personal property of said person which have come into my hands or have been received by any other persons by my order or authority since my appointment or since filing my last Annual Report and of the value of all such property, together with a full and true statement and account of the manner in which I have disposed of the same and of all property remaining in my hands at the time of filing this Report; also a full and true description of the amount and nature of each investment made by me since my appointment or since the filing of my last Report. I do not know of any error or omission in the Report to the prejudice of said person. Sworn to before me this day of, 20 Guardian Notary Public 14 [103]

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154 Nassau County Overview %20A%20Brief%20Overview.pdf Forms GAN Manual Modified for Nassau County [120]

155 Nassau County - 10th JD: Mental Hygiene/Guardianship Supreme Court Mental Hygiene/Guardianship Nassau County Home Districtwide Info Forms Forms Guide to Guardianship FAQS Links General Information Supreme Court, Nassau County Guardianship Department 100 Supreme Court Drive Mineola, NY (516) Jurors Supreme Court Surrogate's Court Family Court County Court District Court City Courts: Long Beach & Glen Cove Town & Village Courts Forms Supreme Court Forms Guardianship Forms Title WORD WPD PDF Fillable Help Initial Report Annual Report of Guardian for Personal Needs Only Annual Report for Guardian of Property Management & Personal Needs Designation Statement Identifying Real Property Guide to Guardianship Lay Guardians Appointed Under Article 81 of the Mental Hygiene Law Guardianship- A Brief Overview Workshop Materials- Part One Workshop Materials- Part Two Links [121] (1 of 2)11/20/2011 9:58:23 AM

156 Nassau County - 10th JD: Mental Hygiene/Guardianship Online Video Training Program Guardian Assistance Network Guardian and Fiduciary Services Court Information Center Find a Lawyer All Rights Reserved. [122] (2 of 2)11/20/2011 9:58:23 AM

157 Incapacitated Person STATEMENT IDENTIFYING REAL PROPERTY Pursuant to Mental Hygiene Law 81/20 (a)(6) (vi) Record and Index: Guardian of Property Address [ ] Check box if there is/are Co-Guardians of the property and List Below Guardian of Property Address Guardian of Property Address Adjudication of Incapacity: Supreme Court Nassau County Index Number Date of Order and Judgment Date of Decision/Verdict Surety Name: Bond Number: Phone Number: [123]

158 Real Property Address Tax Map Desgination: Name of Municipality: Section Block Lot Signature of Guardian Co-Guardian Name of Guardian Name of Co-Guardian State of New York County of } ss: On this day of, before me came Name of Guardian Name of Co-Guardian to me know to be the individuals described herein, and who executed the foregoing instrument and acknowledged that he/she/they executed same. Notary Public [124]

159 Bronx County [125]

160 12th Judicial District - Bronx County Forms City Part IA-3 Part IA-21 Forms Guardianship Legal Support Small Claims Assessment Review Supreme, Civil and Surrogate's Bronx County For all other forms not specific to Bronx County, please check the statewide forms page. General Court Info Court Info All Forms Assignment Sheet Bronx County Clerk (Juror Info) Case Information (Decisions) Court Calendars Court/Law Help Directions Fee Schedule Foreclosure Information Library City Part IA-3 Forms TRIAL AND PRE-TRIAL PDF WPD HIPPA Compliance Statement Form Motions & Preliminary Conferences Rules Rules OSC to Withdraw as Counsel Rules Rules Settlement Conferences & Trial Assignment - updated 10/06/08 Rules Rules Settlement Conferences Worksheet Worksheet Medical Records Phone/Building Directory Help Center Part IA-21 Forms Specific Bureaus PART RULES SPECIFIC TO JUSTICE PAUL A. VICTOR PDF WPD Differentiated Case Management Rules for Motions, Conferences & Trials Rules Rules Guardianship Trial Rules for Trial Counsel Rules Rules Legal Support Matrimonial Motion/Trial Support Courthouse Procedures All Part Rules E-File Resource Center Emergency Procedures Filing Rules SETTLEMENT OF CLAIMS BY INFANTS/IMPAIRED PERSON PDF Rules for Compromise Applications Rules Rules Worksheet/Checklist for Compromise Applications HIPPA Compliance Statement Worksheet / Checklist Form WPD Worksheet / Checklist Standard Compromise Order Form Form Simple Order for a Structured Settlement (With Instructions) [126] Form Form (1 of 3)11/20/ :00:49 AM