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THE CO-GUARDIAN SHOULD NOT HAVE BEEN REMOVED WITHOUT A HEARING; ALTHOUGH THE CO-GUARDIAN HAS A FELONY CONVICTION, SHE OBTAINED A CERTIFICATE OF RELIEF FROM DISABILITIES; THEREFORE, ALTHOUGH SURROGATE’S COURT CAN REMOVE THE CO-GUARDIAN IN THE EXERCISE OF DISCRETION, REMOVAL IS NOT AUTOMATIC (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined the co-guardians’ petition to remove co-guardian respondent Suzette Bonerb should not have been granted without a hearing. Petitioner and Suzette Bonerb were previously appointed co-guardians of their adult child, Whitney Bonerb, and co-trustees of the Whitney Bonerb Credit Shelter Supplemental Needs Trust. Although respondent Suzette had been convicted of a felony, which would allow removal by Surrogate’s Court sua sponte, Suzette had been granted a certificate of relief from disabilities. Therefore a hearing was required:

… [T]he certificate does not prevent the Surrogate “from revoking [respondent’s appointments] in the exercise of its discretion (see Correction Law § 701 [3]); it merely preclude[s] the automatic revocation of” those appointments … . * * *

… [R]espondent conceded that she had been convicted of a felony, but established that she disclosed that fact in the applications for appointments and that she later obtained a certificate of relief from disabilities with respect to that felony (see Correction Law § 701). … [S]he contended that she had been advised by counsel that she was eligible to be appointed a fiduciary at the time when she signed the statement to that effect. Consequently, the Surrogate must make a credibility determination concerning those issues, and then exercise her discretion concerning whether respondent should be removed from her appointments … . Matter of Bonerb, 2021 NY Slip Op 06487, Fourth Dept 11-19-21

 

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