A guardian is someone who is appointed to make important decisions for another person who is not able to make those decisions on their own. This may be for a child, an adult with intellectual or developmental disabilities, or an adult who becomes incapacitated.

One of the most common questions a guardian has when they are appointed as guardian by the court is, “when does the guardianship end?

In the case of a Mental Hygiene Law Article 81 Guardianship, this is an important practical question because the guardian has significant duties that continue until the court says otherwise.

In addition to the guardian’s obligations to the incapacitated person, the guardian’s ongoing duties to the court can include attending guardianship training courses (unless waived by the court), obtaining and filing a bond (unless waived by the court), filing an initial report, filing annual reports, visitation with the incapacitated person as directed by the court, notifying certain individuals of the death of the incapacitated person as directed by the court, and filing a final report.

Given these continuing obligations to the court, it is important to inform the guardian that all guardianships end at some point.

Some reasons the court terminates a guardianship include the following:

  • The incapacitated adult no longer needs a guardian – The court may terminate the guardianship if the court determines that an adult who was initially in need of a guardian no longer needs a guardian.
  • The guardian resigns– The court may end a guardianship if the guardian requests to resign. This is typically done if the guardian has personal reasons to do so.
  • The guardian is no longer able to perform his or her duties – The court may terminate the guardian’s position and appoint a new guardian if the initial guardian becomes incapacitated or is unable to perform his or her duties for any reason.
  • The judge removes the guardian for cause – The court can remove a guardian and appoint a new guardian if the guardian fails to successfully comply with his or her required duties or is guilty of misconduct.
  • Death of the incapacitated adult – The death of the incapacitated adult ends a guardianship.

In the event of the death of the incapacitated adult, the guardian must still complete a number of steps before the guardianship is terminated by the court, including but not limited to:

  1. Provide the court with a copy of the incapacitated individual’s death certificate;
  2. Inform all other relevant parties of the death;
  3. Pay allowable outstanding bills for services rendered while the incapacitated adult was still living;
  4. Prepare a statement of death that is to be provided to the court examiner and the individual responsible for administering the estate of the deceased;
  5. Prepare a statement of assets, which must be provided to the fiduciary of the estate of the deceased individual or public administrator;
  6. Prepare a notice of claim and provide it to the fiduciary of the estate of the deceased individual or public administrator;
  7. Transfer all property (other than what is needed to satisfy known debts and administrative fees) to the fiduciary of the estate of the deceased individual or public administrator; and
  8. File a final account.

 

 


4 Responses to “When Does a Guardianship End?”

  1. Gerty Gift

    I thought it was interesting that a guardianship can end without the incapacitated adult getting better. I would have thought that it was the only way for such a thing to end, but I guess it makes sense that something like being unable to perform your duties can be a reason. Thank you for explaining this. I think that it might be important for me to know in the future.

    Reply
  2. Stefan Bradley

    I was unaware that a guardian is able to resign from their position if they request to do so for personal reasons. My friend wants to become a legal guardian of his nephew in place of the child’s mother, it is good to know that it is possible for her to resign as a legal guardian. I will make sure to let my friend know the specifics so that he can continue with the process.

    Reply
  3. Shaylee Packer

    You mentioned that the guardianship could end if the guardian resigns. Would they then have a court date to determine consercatorship if the individual still isn’t able to take care of themselves? What help do they get until someone is decided to be responsible for them?

    Reply
    • Russo Law Group, P.C.

      The guardianship does not necessarily end if the guardian resigns or passes away. If the guardian is asking the court for leave to resign then the court will appoint a new guardian before authorizing the current guardian to resign. The current guardian MUST continue to act until the court issues an order appointing a new guardian and that guardian is commissioned to act. Until this is done the current guardian has a fiduciary responsibility to the incapacitated person to continue to act.

      If a guardian dies while acting as guardian, then the standby guardian can act on behalf of the incapacitated person. If there is no standby guardian than an interested party can inform the court of the guardian’s passing and petition to have a new guardian appointed. This could be a family member, friend, or concerned person in the incapacitated person’s life, or it could be the court examiner appointed to the matter.

      If you have questions and concerns regarding a guardianship, we are available to meet and answer your questions and discuss your specific concerns. Please contact our office at 516-683-1717 to arrange an appointment.

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