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GUARDIANS AND CUSTODIANS Section 1701. Power of court. 1702. Jurisdiction. 1703. Petition for appointment; by whom made. 1704. Petition for appointment; contents. 1705. Persons to be served. 1706. Proceedings thereupon. 1707. Decree appointing guardian; term of office. 1708. Bonding Requirements; Investment of Guardianship Funds. 1709. Appointment of guardian by supreme court. 1710. Will or deed containing appointment to be proved. 1711. Guardian by will or deed; qualification; renunciation. 1712. Appointment of successor. 1713. Administration of infant`s property. 1714. Power to manage during minority property vested in an infant. 1715. Authority of guardian to sell, lease, exchange or mortgage. 1716. Application for ancillary letters to foreign guardians. 1717. Proceedings thereupon. 1718. Effect of such letters. 1719. Annual account. 1720. Affidavit to be annexed thereto. 1721. Annual examination of guardian`s accounts. 1722. Proceedings where account defective. 1723. Powers of a guardian of the property. 1724. Custodians. 1725. Temporary guardianship by adoptive parent prior to adoption. 1726. Standby guardians. 1727. Petition for termination of account of guardian, committee, or conservator S 1701. Power of court The court has power over the property of an infant and is authorized and empowered to appoint a guardian of the person or of the property or of both of an infant whether or not the parent or parents of the infant are living. S 1702. Jurisdiction Where an infant has no guardian the court may appoint a guardian of his person or property, or of both, in the following cases: 1. Where the infant is domiciled in that county or has sojourned therein immediately preceding the application. 2. Where the infant is a non-domiciliary of the state but has property situate in that county. S 1703. Petition for appointment; by whom made A petition for the appointment of a guardian of the person or property, or both, of an infant may be made by any person in behalf of the infant or if the infant be over the age of 14 years, it may be made by the infant. A petition for appointment as a guardian of the property of an infant may also be made by the public administrator of the county in which the infant resides where no one else is available to serve as guardian. The court may grant such a petition of the public administrator upon its certification that all other efforts to appoint a guardian have been exhausted. S 1704. Petition for appointment; contents A petition for the appointment of a guardian of an infant must show: 1. The full name, domicile and date of birth of the infant. 2. The names of the father and the mother and whether or not they are living, and if living, their domiciles, the name and address of the person with whom the infant resides and the names and addresses of the nearest distributees of full age who are domiciliaries, if both father and mother are dead. 3. Whether the infant has had at any time a guardian appointed by will or deed or an acting guardian in socage or a guardian of the person appointed pursuant to section 384 or section 384-b of the social services law. 4. The estimated value of the real and personal property and of the annual income therefrom to which the infant is entitled. 5. If the infant is a non-domiciliary married person and the petition relates to personal property only, that the property is not subject to the control or disposition of the person`s spouse by the law of his or her domicile, and the name and domicile of his or her spouse. 6. Whether the petitioner has knowledge that a person nominated to be a guardian therein, or any individual eighteen years of age or over who resides in the home of the proposed guardian is a subject of an indicated report, as such terms are defined in section four hundred twelve of the social services law, filed with the statewide central register of child abuse and maltreatment pursuant to title six of article six of the social services law, or has been the subject of or the respondent in a child protective proceeding commenced under article ten of the family court act, which proceeding resulted in an order finding that the child is an abused or neglected child. 7. The petition may state the reasons why a person nominated would be a suitable guardian and if either parent be living why either of them should not be appointed guardian. S 1705. Persons to be served 1. Upon presentation of the petition process shall issue: (a) To the parent or parents, and if the infant is married, to the spouse, if such persons are within the state and their residences therein are known, or if there be none, to the grandparents who are within the county. (b) To the person having the care and custody of the infant or with whom he resides. (c) If the application is made in behalf of an infant over the age of 14 years by any person, to the infant. 2. No process shall be necessary to a parent who has abandoned the infant or is deprived of civil rights or divorced from the parent having legal custody of the infant or an incompetent or who is otherwise judicially deprived of the custody of the infant or in case the infant is married to a spouse who has abandoned the infant or is deprived of civil rights or divorced or an incompetent. 3. The court shall ascertain so far as practicable what relatives of the infant are domiciled in its county or elsewhere and with whom the infant resides and it may issue process to any relative or class of relatives to show cause why the appointment should not be made. S 1706. Proceedings thereupon 1. Where process is not issued or upon the return of process the court shall ascertain the age of the infant, the amount of his personal property, the gross amount of the rents and profits of his real estate during his minority and the sufficiency of the security offered by the proposed guardian. If the infant is over the age of 14 years the court shall ascertain his preference for a suitable guardian. 2. The court shall inquire of the department of social services and the department shall inform the court whether a person nominated to be a guardian of such infant, or any individual eighteen years of age or over who resides in the home of the proposed guardian is a subject of an indicated report, as such terms are defined in section four hundred twelve of the social services law, filed with the statewide central register of child abuse and maltreatment pursuant to title six of article six of the social services law. S 1707. Decree appointing guardian; term of office 1. If the court be satisfied that the interests of the infant will be promoted by the appointment of a guardian or by the issuance of temporary letters of guardianship of his person or of his property, or of both, it must make a decree accordingly. The same person may be appointed guardian of both the person and the property of the infant or the guardianship of the person and of the property may be committed to different persons. The court may appoint a person other than the parent of the infant or the person nominated by the petitioner. When the court is informed that the infant, a person nominated to be a guardian of such infant, the petitioner, or any individual eighteen years of age or over who resides in the home of the proposed guardian is a subject of or another person named in an indicated report, as such terms are defined in section four hundred twelve of the social services law, filed with the statewide register of child abuse and maltreatment pursuant to title six of article six of the social services law or is or has been the subject of or the respondent in or a party to a child protective proceeding commenced under article ten of the family court act which resulted in an order finding that the child is an abused or neglected child the court shall obtain such records regarding such report or proceeding as it deems appropriate and shall give the information contained therein due consideration in its determination. 2. The term of office of a guardian of the person or property so appointed expires when the infant attains majority, or after such other shorter period as the court establishes upon good cause shown; except that the term of office of a guardian of the person of an infant expires upon the infant`s marriage prior to attaining majority. S 1708. Bonding Requirements; Investment of Guardianship Funds 1. Except as provided in this section, all property of the infant shall be secured by bond as provided in this act. 2. (a) The court may dispense with a bond wholly or partly and direct that the guardian jointly with a person or depositary designated collect and receive the moneys and other property of the infant as directed by order and that such moneys and property as it directs be deposited in the name of the guardian, subject to the order of the court, with a bank, savings bank, trust company, safe deposit company, or state or federal credit union designated in the order or invested in the name of the guardian, subject to the order of the court, in the shares of a savings and loan association or the savings account of a federal savings and loan association designated in the order, provided that no deposit or investment of the funds of any one infant in any single bank, savings bank, trust company, savings and loan association, federal savings and loan association, or state or federal credit union shall exceed the maximum amount insured by the federal deposit insurance corporation or the national credit union share insurance fund. (b) The court may also dispense with a bond wholly or partly when it authorizes the guardian to purchase and invest in United States savings bonds, treasury bills, treasury notes, treasury bonds, or bonds of the state of New York or bonds or other obligations of any county, city, town, village or school district of the state of New York for the benefit of the infant and directs the guardian to deposit such bonds, bills, notes or other municipal obligations in joint custody with a bank, savings bank, trust company, safe deposit company, or state or federal credit union invested in the name of the guardian, subject to the order of the court. The guardian shall collect and receive all interest and income from such United States savings bonds, treasury notes, treasury bonds or bonds of the state of New York or bonds or other obligations of any county, city, town, village or school district of the state of New York and deposit such interest and income in an account in the name of the guardian, subject to the order of the court, as authorized pursuant to this section with the bank, savings bank, trust company, safe deposit company, or state or federal credit union having joint custody with the guardian of such United States savings bonds, treasury bills, treasury notes, treasury bonds, or bonds of the state of New York or bonds or other obligations of any county, city, town, village or school district of the state of New York. (c) The court may also dispense with a bond wholly or partly when it authorizes the guardian to invest the guardianship funds pursuant to an investment advisory agreement with a bank, trust company, brokerage house, or other financial services entity acceptable to the court. The investment advisory agreement shall provide that the guardianship funds will be invested in accordance with the provisions of section 11-2.3 of the estates, powers, and trusts law and that the funds so invested shall not be released from the custody of the custodian identified therein except on order of the court. The petition to invest the guardianship funds pursuant to this subdivision shall be accompanied by a copy of the proposed investment advisory agreement. If the custodian of the funds is not the same person or entity providing the investment advice, a separate custodial agreement shall also accompany the petition to invest the guardianship pursuant to this subdivision. Such custodial agreement shall be with an institution acceptable to the court for the purpose of retaining control of the guardianship funds and shall also provide that the funds under the control of the custodian shall not be released from custody except on order of the court. (d) Such deposit or investment shall be withdrawn or removed only on the order of the court, except that no court order shall be required to pay over to the infant who has attained the age of eighteen years all the moneys so held unless the depository is in receipt of an order from a court of competent jurisdiction directing it to withhold such payment beyond the infant`s eighteenth birthday. 3. Where an infant is a beneficiary of a contract of life insurance under which moneys are payable to the infant or under which rights may accrue to the infant pursuant to election made by his guardian under the terms of the contract, the court may by order dispense wholly or partly with a bond and direct that the insurance company and the guardian shall make no withdrawal of the funds due to the infant under the contract except by joint check to the order of the guardian and a person designated by the court to receive such moneys. 4. The letters issued shall contain the substance of the order. S 1709. Appointment of guardian by supreme court 1. Where the supreme court appoints a guardian of an infant`s person or property, or both, a certified copy of the order or decree appointing the guardian and of the bond given by the guardian shall be filed in the surrogate`s court of the county in which the infant is domiciled, or if the infant be a non-domiciliary of the state, in the county in which the infant has property and a minute thereof made and indexed in the book kept by the court in which orders or decrees appointing guardians are entered. 2. Letters shall thereupon issue to the guardian from such court upon qualifying as provided in section 708. 3. A guardian so appointed shall be subject to all the duties and liabilities of a guardian specified in this article. S 1710. Will or deed containing appointment to be proved A person shall not exercise within the state any power or authority as guardian of the person or property of an infant by virtue of the appointment by the will of an infant`s parent, being a domiciliary and dying after this act takes effect, unless the will has been duly admitted to probate and recorded in the proper court and letters of guardianship have been issued thereon; or by virtue of an appointment contained in a deed of the infant`s parent, being a domiciliary, executed after this act takes effect, unless the deed has been acknowledged so as to entitle it to be recorded and has been recorded in the office for recording deeds in the county of domicile of the person making the appointment at the time of execution thereof. S 1711. Guardian by will or deed; qualification; renunciation 1. Where a deed containing the appointment of a guardian is not recorded within 3 months after the death of the grantor, the person appointed is presumed to have renounced the appointment and if a guardian is thereafter appointed by the court the presumption is conclusive. 2. Where a will containing the appointment of a guardian is admitted to probate or a deed is recorded as prescribed in the preceding section, the person appointed guardian must within 3 months thereafter qualify as provided by 708 unless contrary to the express provisions of the will or deed and by filing a petition showing the facts which entitle him to qualify and receive letters; otherwise he is deemed to have renounced the appointment. 3. No guardian by will or deed shall receive any property other than the property derived under the instrument of appointment without first giving a bond in a penalty to be fixed by the court. 4. Either before or after the expiration of 3 months the court may extend the time so to qualify for such time as it deems reasonable, upon good cause shown. 5. A person appointed guardian by will or deed may at any time before he qualifies renounce the appointment by an acknowledged instrument filed in the office of the court. S 1712. Appointment of successor When no guardian by will or deed remains in office a guardian may be appointed by the court with all the powers conferred by the will or deed and with the effect prescribed in 706 of this act unless such appointment would be contrary to the express provisions of the will or deed. S 1713. Administration of infant`s property 1. Upon the petition of the guardian or of the infant or of any person in his behalf, the court, upon notice to such persons, if any, it deems proper, may by order direct the application by the guardian of the infant`s property to (a) the support and education of the infant; (b) the cost of the funeral of a parent of the infant; (c) the cost of the funeral of any other person who had no other assets available for funeral expenses and who had named the infant as beneficiary of a policy of insurance upon his life or as beneficiary or donee of any other property, to the extent that the guardian shall have collected such proceeds or property. 2. In all cases the court may determine the amount of expenditure of the infant`s funds that is reasonable, proper and just under the circumstances, taking into consideration the liability, if any, of any other person to pay such expenses, his financial ability to pay and all other relevant facts. The payment may be made from income or principal. No payment for the funeral expense of any person shall be authorized unless the court finds that the estate of such person is insufficient to pay it. 3. Notwithstanding the provisions of subdivision 1 a guardian is authorized to apply social security payments received for the benefit of the infant to his education and support without order of the court. 4. Any infant over 14 years of age or any person in behalf of any infant may petition the court having jurisdiction over the infant`s estate for the appointment of a guardian ad litem to initiate in behalf of the infant a proceeding for the protection of the infant`s financial or other interests and in such proceeding authorize the guardian ad litem to take such action as the court deems proper. The court may entertain the petition if in its judgment the interests of the guardian of the infant are adverse to those of the infant or if in its opinion other valid reasons exist for the initiation of such a proceeding by another than his guardian. It may in similar case appoint a guardian ad litem for such purpose whenever facts have come to its attention showing the necessity for protecting the interests of the infant. S 1714. Power to manage during minority property vested in an infant The donee of a power to manage during minority property vested in an infant resulting from an ineffectual attempt by will or deed to appoint the donee as guardian shall be subject to the provisions of this article. In respect of such property he shall have all the rights and duties of a guardian and shall be entitled to receive the commissions allowed to a guardian. S 1715. Authority of guardian to sell, lease, exchange or mortgage 1. The surrogate`s court of the county from which letters were issued to the guardian of the property of an infant may, in accordance with this section, authorize the guardian in the name of the infant to sell, lease, exchange or mortgage any interest of the infant in real property. 2. A proceeding therefor may be commenced by the guardian by filing a petition in which the infant, if over the age of 14 years, may join. It must show the facts as to the real property, the interest of the infant therein, the other property of the infant, his financial circumstances and such other facts showing that it is for the best interest of the infant to sell, lease, exchange or mortgage all or a portion of the infant`s interest in the real property. 3. If the petition be entertained process shall issue to the infant if he has not joined therein, to the parent or parents, or if there be none, to an adult person with whom the infant resides, the person having his care and custody, and if the infant be married, to the infant`s spouse. If the guardian show to the satisfaction of the court either by the petition or affidavit that he lacks knowledge of the existence, identity, name, residence or location of any person to be served or shows that with due diligence any such person cannot be personally served with process within any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a territory or possession of the United States, the court may dispense with such service or make such direction as it deems appropriate for the protection of the infant. 4. On the return of process the court shall take such proof as it deems necessary and make such order as justice and the best interests of the infant require. 5. Any instrument executed by the guardian in the name of the infant in conformity with the provisions of this section shall have the same effect as if the infant being of full age had executed it. 6. The court shall have jurisdiction on like application to ratify and confirm any lease or leases made by the guardian in behalf of the infant and not theretofore authorized, ratified or confirmed by a court of competent jurisdiction. 7. Nothing in this section shall be deemed to authorize a guardian appointed by will or deed to sell, lease, exchange or mortgage the infant`s real property contrary to the express provisions of the will or deed. S 1716. Application for ancillary letters to foreign guardians 1. Where an infant is domiciled within a state of the United States other than this state, or the District of Columbia, the Commonwealth of Puerto Rico or a territory or possession of the United States and is entitled to property within the state or to maintain an action or special proceeding in any court thereof, a guardian of his property to whom letters have been issued by a court of competent jurisdiction within the foreign state, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States where the infant is domiciled, and has there given security in at least the value of the personal property and of the rents and profits of the real property of the infant, may present to the surrogate`s court having jurisdiction, a petition showing the facts and particularly whether or not there are any debts due or to become due from the infant to a domiciliary and that the security given is sufficient to cover the property sought to be obtained through such letters and that the court has jurisdiction of the infant and praying for ancillary letters of guardianship accordingly. 2. The petition must be accompanied with exemplified copies of the records and other papers showing that he has been so appointed and has given the security required in this section, which must be authenticated in the manner prescribed by the CPLR. The petition and authenticated records and papers shall be conclusive evidence of the facts therein set forth in any court of this state. 3. Any corporate banking institution in any state, the District of Columbia, the Commonwealth of Puerto Rico or a territory or possession of the United States not entitled of right under section 131 of the banking law to receive such letters may nevertheless be authorized to receive them upon giving the bond which the court may require. 4. Where a non-domiciliary infant resides in a foreign country and is entitled to property within the state or to maintain an action or special proceeding in any court thereof respecting such property, a guardian of his property authorized to act as such within the domicile of the infant may apply to the surrogate`s court of the county where the property or any part thereof is situate, for ancillary letters of guardianship on the estate of the infant and the person so authorized must present a petition showing the facts and the additional allegations regarding debts and security required by subdivision 1 and praying for ancillary letters. The petition must be accompanied with the authenticated copies of the records and other papers showing the appointment of the petitioner or where the foreign guardian has not been appointed by any court, with other proof of his authority to act as guardian within the foreign country and also with proof that pursuant to the laws of the foreign country he is entitled to the possession of the infant`s personal estate. Authenticated copies of the records where used pursuant to this subdivision must be authenticated by the seal of the court or officer by which or by whom he was appointed or by the officer having the custody of the seal or the record thereof and the signature of a judge of such court or the signature of such officer and of the clerk of such court, if any, and must be further authenticated by the certificate under the principal seal of the department of foreign affairs or of the department of justice of such country, attested by the signature or seal of a United States consul. The petition and authenticated records and papers shall be conclusive evidence of the facts therein set forth in any court of this state. S 1717. Proceedings thereupon 1. Where the court is satisfied upon the papers presented as prescribed in the preceding section that the case is within that section and that it will be for the infant`s interest that ancillary letters issue to the petitioner, it may make a decree accordingly. 2. The decree may be made without process or process may issue to such persons as the court deems proper, to show cause why the prayer of the petition should not be granted. 3. Before ancillary letters are issued the court may direct that any debts appearing to be due or owing from the infant to domiciliaries be paid or security given therefor. S 1718. Effect of such letters 1. Ancillary letters of guardianship shall be issued as prescribed in the preceding section, without security, except as provided in that section. 2. They authorize the person to whom they are issued to demand and receive the personal property and the rents and profits of the real property of the infant and the proceeds of the sale, mortgage or lease of the real property of the infant, to dispose of them in like manner as a guardian of the property appointed as prescribed in this article, to remove them from the state and to maintain any action or special proceeding in the infant`s behalf. 3. Letters so issued do not authorize the ancillary guardian to receive from a domiciliary fiduciary subject to the jurisdiction of the court, money or other property belonging to the infant, in a case where domiciliary letters have been issued in this state to a guardian of the infant`s property, except by special direction made for good cause shown of the court from which the domiciliary letters were issued or unless the domiciliary letters have been revoked.
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S 1719. Annual account A guardian of an infant`s property must within the counties within the city of New York and within the counties of Nassau, Orange, Suffolk and Westchester annually within 30 days after the anniversary of his appointment and within every other county in the month of January of each year, as long as any of the infant`s property or the proceeds thereof remains under his control, file in the court the following papers: 1. An account containing a true statement and description of each item of personal property of the infant received by him since his appointment or since the filing of his last annual account, as the case requires, the value of each item so received, a list of the items remaining in his hands, a statement of the manner in which he has disposed of each item not remaining in his hands and a description of the amount and nature of each investment of money made by him. 2. A true account in form of debtor and creditor of all his receipts and disbursements of money during the preceding year, charging himself with any balance remaining in his hands when the last account was rendered and stating the balance remaining in his hands at the conclusion of the year to be charged to him in the next year`s account. 3. The names and addresses of the sureties on his bond; if natural persons whether they are living and whether the security of the bond has become impaired. 4. The guardian of an infant`s property may be required by the court to produce for examination by it all securities or evidences of deposit or investment which he has relating to the estate of the infant. 5. When the property of an infant has been deposited under the provisions of 1708, and the clerk or guardian clerk of the court shall keep in his office, or the depositary furnishes to the court, an accurate record of receipts of deposits of principal and income of the infant`s estate and of withdrawals therefrom, the guardian shall not be required to file an annual account unless the court direct the filing of an account for any year or years. S 1720. Affidavit to be annexed thereto To each account as prescribed in the preceding section must be appended the affidavit of the guardian to the effect that the account is a true statement according to the best of his knowledge and belief. S 1721. Annual examination of guardian`s accounts In the month of February of each year and thereafter until completed or at such other time as the court deems proper, the court must for the purposes specified in the succeeding section, examine or cause to be examined under its direction all accounts filed within the preceding year. The examination may be made by the clerk of the court or by a special examiner appointed by the court, who must before he enters upon the examination subscribe and take before the court and file with the clerk an oath faithfully to execute his duties and to make a true report to the court. S 1722. Proceedings where account defective 1. If it appears to the court upon an examination made as prescribed in the preceding section or by the report of the special examiner that a guardian of an infant`s property has omitted to file his annual account or the affidavit relating thereto as prescribed in this article or if the court deems that the interest of the infant requires that the guardian render a more full or satisfactory account or where the court has reason to believe that sufficient cause exists for the guardian`s removal, it may appoint a guardian ad litem for the infant for the purpose of filing a petition in his behalf for the removal of the guardian and prosecuting the proceeding for that purpose. 2. In a case specified in subdivision 1 where a special examiner has been appointed the court may appoint such examiner guardian ad litem for the infant and authorize him to procure the filing of an amended or proper account and to prosecute a proceeding for the removal of the guardian when necessary. 3. In all cases of examination or prosecution as provided in this section the court shall fix the compensation of the special examiner and guardian ad litem and may make an order charging it in whole or in part upon the guardian personally, the funds in his hands or upon the county, in which latter case it shall certify the items thereof to the treasurer of the county or the chief fiscal officer thereof or in the city of New York to the proper officers and they shall be audited and paid as other county or city charges. S 1723. Powers of a guardian of the property. 1. A guardian of the property of an infant shall protect, preserve and manage the property of the infant. He shall have the power to sell the personal property of the infant for any purpose connected with the faithful discharge of his trust, including investing such property or the proceeds thereof, changing investments and disposing of investments, except where his authority is otherwise limited by court order or decree, or in the case of a testamentary guardian, by the terms of the will which appointed him. S 1724. Custodians An infant or a custodian acting under EPTL 7-4.1 to 7-4.9 inclusive shall be subject to the jurisdiction of the court in accordance with the provisions of such law. S 1725. Temporary guardianship by adoptive parent prior to adoption 1. Upon the filing of a petition for temporary guardianship, as described in section one hundred fifteen-c of the domestic relations law, or upon the filing of a petition for adoption when no prior application has been made for an order of temporary guardianship, the court shall determine promptly whether or not to grant temporary guardianship. 2. A petition for temporary guardianship of the person of an infant to be adopted shall contain at least the following: (a) The first and last name of the infant, the anticipated surname of the infant subsequent to the completion of the adoption, the anticipated residence of the infant and the infant`s date of birth; (b) The full names, addresses and telephone numbers of the petitioners; (c) Proof of the consent to the adoption of the infant as required by section one hundred fifteen-b of the domestic relations law; and (d) A verified statement that the infant will be residing with the petitioners and that the petitioners intend to file a petition for adoption of such infant within forty-five days of the execution of the consent to the adoption of the infant. 3. (a) The court shall inquire of the statewide central register of child abuse and maltreatment and the register shall inform the court whether the petitioner is a subject of an indicated report, as such terms are defined in section four hundred twelve of the social services law, filed with such register. When the court is informed that the petitioner is a subject of an indicated report, as such terms are defined in section four hundred twelve of the social services law, filed with the statewide central register of child abuse and maltreatment, the court shall give such information contained therein due consideration in its determination. (b) The court shall make an order based upon the best interests of the child. Such order shall: (i) appoint the petitioner temporary guardian of the person of the child; or (ii) continue the proceeding for further investigation; or (iii) if there is apparent cause to remove the child from the petitioners, follow the procedure set forth in subdivision two of section one hundred sixteen of the domestic relations law. (c) Any decree or order of temporary guardianship issued pursuant to this section shall expire no later than nine months following the date of its issuance or entry of a final order of adoption, whichever is sooner. Such decree or order may be extended for periods of up to three months, upon application to the court, for good cause shown. (d) Any decree or order issued pursuant to this section shall terminate upon the withdrawal or denial of the petition to adopt the infant named therein, unless the court orders the continuation thereof during the pendency of an appeal from an order denying the adoption petition. 4. If the court denies an application for temporary guardianship, or removes a child from the physical custody of the petitioners, or an order of temporary guardianship expires without the entry of a final order of adoption, or if the petition for adoption is withdrawn or denied, the court: (a) if such withdrawal, denial or removal is within forty-five days of the execution of the consent to adoption by the birth parent, shall promptly inform the birth parent who consented to the adoption of such withdrawal, denial or removal; (b) if such withdrawal, denial or removal is subsequent to forty-five days of the execution of the consent to adoption by the natural parent, may inform the natural parent who consented to the adoption of such withdrawal, denial or removal where the court determines that such notice will be in the best interests of the child; and (c) in any case, shall direct the child protective service to conduct an investigation to assess the condition of the infant and to report its findings to the court within the time specified in the order. If the court has reason to believe that a crime was committed, it shall report such belief to the appropriate district attorney. 5. Rules of court shall provide for the monitoring by the court of filing of an adoption petition within forty-five days of the execution of a consent to adoption, when an application for temporary guardianship has been filed. S 1726. Standby guardians 1. For the purpose of this section: (a) "Standby guardian" means (i) a person judicially appointed pursuant to subdivision three of this section as standby guardian of the person and/or property of an infant whose authority becomes effective upon the incapacity or death of the infant`s parent, legal guardian, legal custodian or primary caretaker or upon the consent of the parent, legal guardian, legal custodian or primary caretaker; and (ii) a person designated pursuant to subdivision four of this section as standby guardian whose authority becomes effective upon the death or incapacity of the infant`s parent, legal guardian, legal custodian or primary caretaker or upon the debilitation and consent of the parent, legal guardian, legal custodian or primary caretaker. (b) "Legal guardian" means the court-appointed guardian of the infant`s person and/or property. (c) "Attending physician" means the physician who has primary responsibility for the treatment and care of the infant`s parent, legal guardian, legal custodian or primary caretaker. Where more than one physician shares such responsibility, or where a physician is acting on the attending physician`s behalf, any such physician may act as the attending physician pursuant to this section. Where no physician has such responsibility, any physician who is familiar with the parent`s, legal guardian`s, legal custodian`s or primary caretaker`s medical condition may act as the attending physician pursuant to this section. (d) "Debilitation" means a chronic and substantial inability to care for one`s dependent infant, as a result of (i) a progressively chronic or irreversibly fatal illness, or (ii) a physically debilitating illness, disease or injury. "Debilitated" means the state of having a debilitation. (e) "Incapacity" means a chronic and substantial inability, as a result of mental impairment, to understand the nature and consequences of decisions concerning the care of one`s dependent infant, and a consequent inability to care for such infant. "Incapacitated" means the state of having an incapacity. 2. The provisions of this article relating to guardians shall apply to standby guardians, except insofar as this section provides otherwise. 3. (a) A petition for the judicial appointment of a standby guardian of the person and/or property of an infant pursuant to this subdivision may be made only by a parent, a legal guardian of the infant or a legal custodian of the infant; or where the infant is not residing with a parent, legal guardian or legal custodian and, to the satisfaction of the court, such parent, legal guardian or legal custodian cannot be located with due diligence, the primary caretaker of such infant may petition for a judicial appointment of such standby guardian. Application for standing to petition as a primary caretaker shall be upon motion to the court upon notice to such parties as the court may direct. (b) A petition for the judicial appointment of a standby guardian of an infant shall, in addition to meeting the requirements of section seventeen hundred four of this article: (i) State whether the authority of the standby guardian is to become effective upon the petitioner`s incapacity, upon the petitioner`s death, upon the petitioner`s consent, or upon whichever occurs first; (ii) State that the petitioner suffers from (A) a progressively chronic illness or (B) an irreversibly fatal illness and the basis for such statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question. (c) The petitioner`s appearance in court shall not be required if the petitioner is medically unable to appear, except upon motion and for good cause shown. (d) (i) If the court finds that the petitioner suffers from a progressively chronic illness or an irreversibly fatal illness and that the interests of the infant will be promoted by the appointment of a standby guardian of the person and/or property it must make a decree accordingly. (ii) Such decree shall specify whether the authority of the standby guardian is effective upon the receipt of a determination of the petitioner`s incapacity, upon the receipt of the certificate of the petitioner`s death, or other such evidence of death that may be satisfactory to the court, or upon whichever occurs first, and shall also provide that the authority of the standby guardian may earlier become effective upon written consent of the parent pursuant to subparagraph (iii) of paragraph (e) of this subdivision. (iii) If at any time prior to the commencement of the authority of the standby guardian the court finds that the requirements of subparagraph (i) of this paragraph are no longer satisfied, it may rescind such decree. (e) (i) Where the decree provides that the authority of the standby guardian is effective upon receipt of a determination of the petitioner`s incapacity, the standby guardian`s authority shall commence upon the standby guardian`s receipt of a copy of a determination of incapacity made pursuant to subdivision six of this section. The standby guardian shall file a copy of the determination of incapacity with the court that issued the decree within ninety days of the date of receipt of such determination or the standby guardian`s authority may be rescinded by the court. (ii) Where the decree provides that the authority of the standby guardian is effective upon receipt of a certificate of the petitioner`s death, or other such evidence of death that may be satisfactory to the court, the standby guardian`s authority shall commence upon the standby guardian`s receipt of a certificate of death, or other such evidence of death as may be specified in the decree. The standby guardian shall file the certificate of death, or other such evidence of death, with the court that issued the decree within ninety days of the date of the petitioner`s death or the standby guardian`s authority may be rescinded by the court. (iii) Notwithstanding subparagraphs (i) and (ii) of this paragraph, a standby guardian`s authority shall commence upon the standby guardian`s receipt of the petitioner`s written consent to such commencement, signed by the petitioner in the presence of two witnesses at least eighteen years of age, other than the standby guardian, who shall also sign the writing. Another person may sign the written consent on the petitioner`s behalf and at the petitioner`s direction if the petitioner is physically unable to do so, provided such consent is signed in the presence of the petitioner and the witnesses. The standby guardian shall file the written consent with the court that issued the decree within ninety days of the date of receipt of such written consent or the standby guardian`s authority may be rescinded by the court. (f) The petitioner may revoke a standby guardianship created under this subdivision by executing a written revocation, filing it with the court that issued the decree, and promptly notifying the standby guardian of the revocation. (g) A person judicially appointed standby guardian pursuant to this subdivision may at any time before the commencement of his or her authority renounce the appointment by executing a written renunciation and filing it with the court that issued the decree, and promptly notifying the petitioner of the revocation. 4. (a) A parent, a legal guardian, a legal custodian, or primary caretaker under the circumstances described in paragraph (a) of subdivision three of this section may designate a standby guardian by means of a written designation, signed by the parent, legal guardian, legal custodian or primary caretaker in the presence of two witnesses at least eighteen years of age, other than the standby guardian, who shall also sign the writing. Another person may sign the written designation on the parent`s, legal guardian`s, legal custodian`s or primary caretaker`s behalf and at the parent`s, legal guardian`s, legal custodian`s or primary caretaker`s direction if the parent, legal guardian, legal custodian or primary caretaker is physically unable to do so, provided the designation is signed in the presence of the parent, legal guardian, legal custodian or primary caretaker and the witnesses. (b) (i) A designation of a standby guardian shall identify the parent, legal guardian, legal custodian or primary caretaker, the infant and the person designated to be the standby guardian, and shall indicate that the parent, legal guardian, legal custodian or primary caretaker intends for the standby guardian to become the infant`s guardian in the event the parent, legal guardian, legal custodian or primary caretaker either: (A) becomes incapacitated; (B) becomes debilitated and consents to the commencement of the standby guardian`s authority; or (C) dies prior to the commencement of a judicial proceeding to appoint a guardian of the person and/or property of an infant. (ii) A parent, legal guardian, legal custodian or primary caretaker may designate an alternate standby guardian in the same writing, and by the same manner, as the designation of a standby guardian. (iii) A designation may, but need not, be in the following form: Designation of Standby Guardian (NOTE: As used in this form, the term "parent" shall include a parent, a court-appointed guardian of an infant`s person or property, a legal custodian, or a primary caretaker, and the term "child(ren)" shall include the dependant infant of a parent, court-appointed guardian, legal custodian or primary caretaker I (name of parent) hereby designate (name, home address and telephone number of standby guardian) as standby guardian of the person and property of my child(ren) (name of child(ren)). (You may, if you wish, provide that the standby guardian`s authority shall extend only to the person, or only to the property, of your child, by crossing out "person" or "property", whichever is inapplicable, above.) The standby guardian`s authority shall take effect: (1) if my doctor concludes in writing that I am mentally incapacitated, and thus unable to care for my child(ren); (2) if my doctor concludes in writing that I am physically debilitated, and thus unable to care for my child(ren) and I consent in writing, before two witnesses, to the standby guardian`s authority taking effect; or (iii) upon my death. In the event the person I designate above is unable or unwilling to act as guardian for my child(ren), I hereby designate (name, home address and telephone number of alternate standby guardian), as standby guardian of my child(ren). I also understand that my standby guardian`s authority will cease sixty days after commencing unless by such date he or she petitions the court for appointment as guardian. I understand that I retain full parental, guardianship, custodial or caretaker rights even after the commencement of the standby guardian`s authority, and may revoke the standby guardianship at any time. Signature: _____________ Address: ______________________________ Date: ___________________ I declare that the person whose name appears above signed this document in my presence, or was physically unable to sign and asked another to sign this document, who did so in my presence. I further declare that I am at least eighteen years old and am not the person designated as standby guardian. Witness` Signature: _______________________ Address: __________________________________ Date: ____________ Witness` Signature: _______________ Address: ___________________________ Date: ______________________________ (iv) Notwithstanding paragraphs (a) and (b) of this subdivision, a designation of standby guardian shall be effective as if made in accordance with the requirements of this subdivision if it was validly made: (a) where the parent, legal guardian, legal custodian or primary caretaker was domiciled at the time it was executed; (b) in the jurisdiction where it was executed or (c) where the parent, legal guardian, legal custodian or primary caretaker is domiciled at the time the designation becomes effective. (c) The authority of the standby guardian under a designation shall commence upon either: (i) the standby guardian`s receipt of a copy of a determination of incapacity made pursuant to subdivision six of this section; (ii) the standby guardian`s receipt of (A) a copy of a determination of debilitation made pursuant to subdivision six of this section and (B) a copy of the parent`s, legal guardian`s, legal custodian`s or primary caretaker`s written consent to such commencement, signed by the parent, legal guardian, legal custodian or primary caretaker in the presence of two witnesses at least eighteen years of age, other than the standby guardian, who shall also sign the writing. Another person may sign the written consent on the parent`s, legal guardian`s, legal custodian`s or primary caretaker`s behalf and at the parent`s, legal guardian`s, legal custodian`s or primary caretaker`s direction if the parent, legal guardian, legal custodian or primary caretaker is physically unable to do so, provided such consent is signed in the presence of the parent, legal guardian, legal custodian or primary caretaker and the witnesses; or (iii) the standby guardian`s receipt of a certificate of death, funeral home receipt or other such document indicating that the parent, legal guardian, legal custodian or primary caretaker has died. The standby guardian shall file a petition pursuant to paragraph (d) of this subdivision within sixty days of the date of its commencement pursuant to this paragraph or such standby guardian`s authority shall cease after such date, but shall recommence upon such filing. (d) The standby guardian may file a petition for appointment as guardian after receipt of either: (i) a copy of a determination of incapacity made pursuant to subdivision six of this section; or (ii) (A) a copy of a determination of debilitation made pursuant to subdivision six of this section and (B) a copy of the parent`s, legal guardian`s, legal custodian`s or primary caretaker`s written consent, pursuant to paragraph (c) of this subdivision; or (iii) a certificate of death, or other such evidence of death that may be satisfactory to the court. Such petition must, in addition to meeting the requirements of section seventeen hundred four of this article: (i) append the written designation of such person as standby guardian; and (ii) append a copy of: (A) the determination of incapacity of the parent, legal guardian, legal custodian or primary caretaker; or (B) the determination of debilitation and the parental, guardian`s, custodian`s or caretaker`s consent; or (C) a copy of the parent`s, legal guardian`s, legal custodian`s or primary caretaker`s death certificate, or other such evidence of death that may be satisfactory to the court; and (iii) if the petition is by a person designated as alternate standby guardian, state that the person designated as standby guardian is unwilling or unable to act as standby guardian, and the basis for such statement. (e) If the court finds that the petitioner was duly designated as standby guardian, that the parent, legal guardian, legal custodian or primary caretaker of the infant is incapacitated, debilitated and consents or has died, as established by a copy of a death certificate or other such evidence of death as may be satisfactory to the court, that the interests of the infant will be promoted by the appointment of a standby guardian of the person and/or property, and that, if the petition is by a person designated as alternate standby guardian, the person designated as standby guardian is unwilling or unable to act as standby guardian, it must make a decree accordingly. (f) The parent, legal guardian, legal custodian or primary caretaker may revoke a standby guardianship created under this subdivision: (i) by executing a subsequent designation of guardianship pursuant to paragraphs (a) and (b) of this subdivision, or (ii) notwithstanding the provisions of sections seventeen hundred ten and seventeen hundred eleven of this article, in the case of a standby guardian whose authority becomes effective upon the death of the parent, legal guardian, legal custodian or primary caretaker of the infant, by a subsequent designation of standby guardian set forth in a will of the parent, legal guardian, legal custodian or primary caretaker, or (iii) by notifying the standby guardian verbally or in writing or by any other act evidencing a specific intent to revoke the standby guardianship prior to the filing of a petition. Where the petition has already been filed, by executing a written revocation, filing it with the court where the petition was filed, and promptly notifying the standby guardian of the revocation. 5. The standby guardian may also file a petition for appointment as guardian in any other manner permitted by this article or article six of the family court act, on notice to the parent, legal guardian, legal custodian or primary caretaker and may append a designation of standby guardian to the petition for consideration by the court in the determination of such petition. 6. (a) A determination of incapacity or debilitation must: (i) be made by the attending physician to a reasonable degree of medical certainty; (ii) be in writing; and (iii) contain the attending physician`s opinion regarding the cause and nature of the parent`s, legal guardian`s, legal custodian`s or primary caretaker`s incapacity or debilitation as well as its extent and probable duration. The attending physician shall provide a copy of the determination of incapacity or debilitation to the standby guardian, if the standby guardian`s identity is known to the physician. (b) If requested by the standby guardian, an attending physician shall make a determination regarding the parent`s, legal guardian`s, legal custodian`s or primary caretaker`s incapacity or debilitation for purposes of this section. (c) The standby guardian shall ensure that the parent, legal guardian, legal custodian or primary caretaker is informed of the commencement of the standby guardian`s authority as a result of a determination of incapacity and of the parent`s, legal guardian`s, legal custodian`s or primary caretaker`s right to revoke such authority promptly after receipt of the determination of incapacity, provided there is any indication of the person`s ability to comprehend such information. 7. The commencement of the standby guardian`s authority pursuant to a determination of incapacity, determination of debilitation, or consent shall not, itself, divest the parent, legal guardian, legal custodian or primary caretaker of any parental, guardianship, custodial or caretaker rights, but shall confer upon the standby guardian concurrent authority with respect to the infant. 8. (a) The clerk of any county upon being paid the fees allowed therefor by law shall receive for filing any instrument appointing or designating a standby guardian pursuant to this section made by a domiciliary of the county, and shall give a written receipt therefor to the person delivering it. The filing of an appointment or designation of standby guardian shall be for the sole purpose of safekeeping and shall not affect the validity of the appointment or designation. (b) The appointment or designation shall be delivered only to: (i) the parent, legal guardian, legal custodian or primary caretaker who appointed or designated the standby guardian; (ii) the standby guardian or alternate standby guardian; (iii) the person designated as standby guardian or alternate standby guardian; or (iv) any other person directed by the court. S 1727. Petition for termination of account of guardian, committee, or conservator Where a guardian, committee or conservator is presently maintaining an account on behalf of an infant, incompetent, conservatee or person under disability in an amount not exceeding $10,000.00, which account was established prior to the effective date of this section, the guardian, committee or conservator may petition the court in the county having jurisdiction over said account for an order authorizing the termination of the account and payment of the balance of the account to a parent of such person or to some competent adult with whom such person resides or who has some interest in such person`s welfare for the use and benefit of such person.