This page is for people with guardians, and their advocates, who want information about changing or ending a guardianship.
Section 81.36 of the Mental Hygiene Law has more information about ending or changing a guardianship.
Ending (Terminating) a Guardianship
There are a few main reasons you may want a guardianship to end or change, including:
- Capacity Returns: If an Incapacitated Person (IP) regains capacity, the guardianship can be terminated by the court.
- What you need to show: Using the guidance below, explain and show the judge that the IP is no longer incapacitated and can communicate informed decisions.
- Guardianship is no longer necessary: Guardianship may end when the IP/Person in Need of a Guardian (PING)’s needs have been met and a plan is in place to make sure those needs continue to be met going forward.
- What you need to show: Using the guidance below, you will need to explain and show the judge what changed to make the guardianship no longer necessary. The court will review many things including the IP/PING's wishes, their current condition, and the availability of other resources.
- Property example: A guardian may be able to set up automated bill payment or organize assets in a way that makes them easier for the IP/PING to manage without a guardian going forward.
- Personal needs example: A guardian has set up home care services or relocated the IP/PING to an environment with necessary supportive services and the person no longer needs a guardian.
- If the IP/PING passes away (dies): The guardian or court examiner will also file a Notice of Death (usually with the death certificate as an exhibit) and request permission to file a Final Accounting. [see Section 81.44 of the Mental Hygiene Law for more detail about this process.]
- PING no longer consents: A guardianship can end when a person who consented to the guardianship, a "Person in Need of a Guardian" (PING) decides to take back their consent. This is ONLYin cases where a person CONSENTED to a guardianship and has been determined a PING. The PING can remove their consent. This is not for people who were found to be incapacitated by a judge.
- What you need to show: Using the guidance below, inform the court that the PING no longer consents and has not become incapacitated.
How to End (Terminate) a Guardianship
The first step in ending a guardianship is to get specific instructions on how to make the request to the court. Different counties may have different processes for ending a guardianship. If there is a Guardianship Office at the courthouse that appointed the guardian, contact them for help. If there is no Guardianship Office, contact the court where the guardian was appointed – you may reach out to a guardianship clerk (if there is one) or the court clerk.
- Who can file to end a guardianship? A guardian, the IP/PING themselves, or anyone interested in the wellbeing of the person with a guardian.
- The Process of Ending a Guardianship:
- File a Petition for Termination: A sworn document explaining why the guardianship is no longer necessary
- Serve Notice to Interested Parties: You must notify (serve) all parties of the termination request, including the IP/PING, the current guardian, court examiner, and any other interested parties such as family members or healthcare providers.
- The court may appoint a court evaluator or counsel to the IP/PING: If a court evaluator is appointed, they review the petition and interview the IP/PING and others involved to determine whether terminating the guardianship is in the IP/PING’s best interest.
- A hearing takes place: At a scheduled hearing, the court will listen to testimony and review all information from all parties and the court evaluator (if there is one), and make a final decision on whether or not to terminate the guardianship.
- Court may issue Order of Termination: If the court grants the Petition for Termination, it will issue an Order of Termination. The court will require a final report from the guardian. Once requests from the court are complete, the guardian will be discharged from their duties. The guardianship will officially end, and a person previously considered to be an IP/PING will regain their legal capacity.
Requesting other changes: issues with a guardian, changing powers, and more
If a guardian’s powers need to be changed, there are issues with a guardian, or any other changes are needed, you must make a request with the court. The process for changing anything related to a guardianship is similar to ending a guardianship. The Petitioner or guardian must follow the rules of the court that issued the guardianship. Different counties may have different processes for changing a guardianship. If there is a Guardianship Office at the courthouse that appointed the guardian, contact them for help. If there is no Guardianship Office, contact the court where the guardian was appointed – you may reach out to a guardianship clerk (if there is one) or the court clerk.
- Depending on the instructions, you may have to file a document asking to modify (change) the guardianship based on the situation. Be sure to follow any instructions about serving (notifying) other parties.
- Filing a request to change a guardianship will often result in a hearing to determine if the change should be made. The person making the request should be ready to explain why the changes are needed.
- Some courts might allow a more informal process, which is why it is important to check with your local court first.
Section 81.35 of the Mental Hygiene Law is about removing a guardian for misconduct, not complying with an order, or other reasons.
Section 81.36 of the Mental Hygiene Law is about changing powers or ending the guardianshipWhat if a Guardian Resigns or Dies?
Resigning: If a guardian wants to resign, they must file papers with the court (make a motion) asking permission to resign and file their final guardianship accounting. A guardian will often suggest a replacement (successor guardian) to take their place if no standby guardian has been named. If a guardian does not suggest a replacement (successor guardian), the court chooses who to appoint in their place. [see Section 81.37 of the Mental Hygiene Law about the resignation of a guardian.]
Guardian Dies: In a case where the guardian dies, if no standby guardian had been previously named, the court examiner will present the court with a Notice of Death and ask to have a successor guardian appointed. The court examiner may also request a “referee” be appointed to complete the deceased guardian’s final accounting or the Court may direct the successor Guardian to complete the deceased guardian’s final accounting. [see Section 81.38 of the Mental Hygiene Law about when a guardian’s position is “vacant” due to death or other reasons.]