The 2023 Florida Statutes (including Special Session C)

Title XLIII
DOMESTIC RELATIONS

Chapter 744
GUARDIANSHIP

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F.S. 744.441

744.441 Powers of guardian upon court approval.—After obtaining approval of the court pursuant to a petition for authorization to act, a plenary guardian of the property, or a limited guardian of the property within the powers granted by the order appointing the guardian or an approved annual or amended guardianship report, may do all of the following:

(1) Perform, compromise, or refuse performance of a ward’s contracts that continue as obligations of the estate, as he or she may determine under the circumstances.

(2) Execute, exercise, or release any powers as trustee, personal representative, custodian for minors, conservator, or donee of any power of appointment or other power that the ward might have lawfully exercised, consummated, or executed if not incapacitated, if the best interest of the ward requires such execution, exercise, or release.

(3) Make ordinary or extraordinary repairs or alterations in buildings or other structures; demolish any improvements; or raze existing, or erect new, party walls or buildings.

(4) Subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving or receiving consideration; or dedicate easements to public use without consideration.

(5) Enter into a lease as lessor or lessee for any purpose, with or without option to purchase or renew, for a term within, or extending beyond, the period of guardianship.

(6) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.

(7) Abandon property when, in the opinion of the guardian, it is valueless or is so encumbered or in such condition that it is of no benefit to the estate.

(8) Pay calls, assessments, and other sums chargeable or accruing against, or on account of, securities.

(9) Borrow money, with or without security, to be repaid from the property or otherwise and advance money for the protection of the estate.

(10) Effect a fair and reasonable compromise with any debtor or obligor or extend, renew, or in any manner modify the terms of any obligation owing to the estate.

(11) Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the guardian in the performance of his or her duties. Before authorizing a guardian to bring an action described in s. 736.0207, the court shall first find that the action appears to be in the ward’s best interests during the ward’s probable lifetime. There shall be a rebuttable presumption that an action challenging the ward’s revocation of all or part of a trust is not in the ward’s best interests if the revocation relates solely to a devise. This subsection does not preclude a challenge after the ward’s death. If the court denies a request that a guardian be authorized to bring an action described in s. 736.0207, the court must review the continued need for a guardian and the extent of the need for delegation of the ward’s rights.

(12) Sell, mortgage, or lease any real or personal property of the estate, including homestead property, or any interest therein for cash or credit, or for part cash and part credit, and with or without security for unpaid balances.

(13) Continue any unincorporated business or venture in which the ward was engaged.

(14) Purchase the entire fee simple title to real estate in this state in which the guardian has no interest, but the purchase may be made only for a home for the ward, to protect the home of the ward or the ward’s interest, or as a home for the ward’s dependent family. If the ward is a married person and the home of the ward or of the dependent family of the ward is owned by the ward and spouse as an estate by the entirety and the home is sold pursuant to the authority of subsection (12), the court may authorize the investment of any part or all of the proceeds from the sale toward the purchase of a fee simple title to real estate in this state for a home for the ward or the dependent family of the ward as an estate by the entirety owned by the ward and spouse. If the guardian is authorized to acquire title to real estate for the ward or dependent family of the ward as an estate by the entirety in accordance with the preceding provisions, the conveyance must be in the name of the ward and spouse and be effective to create an estate by the entirety in the ward and spouse.

(15) Exercise any option contained in any policy of insurance payable to, or inuring to the benefit of, the ward.

(16) Pay reasonable funeral, interment, and grave marker expenses for the ward from the ward’s estate.

(17) Make gifts of the ward’s property to members of the ward’s family in estate and income tax planning procedures.

(18) When the ward’s will evinces an objective to obtain a United States estate tax charitable deduction by use of a split interest trust (as that term is defined in s. 736.1201), but the maximum charitable deduction otherwise allowable will not be achieved in whole or in part, execute a codicil on the ward’s behalf amending said will to obtain the maximum charitable deduction allowable without diminishing the aggregate value of the benefits of any beneficiary under such will.

(19) Create or amend revocable trusts or create irrevocable trusts of property of the ward’s estate which may extend beyond the disability or life of the ward in connection with estate, gift, income, or other tax planning or in connection with estate planning. The court shall retain oversight of the assets transferred to a trust, unless otherwise ordered by the court.

(20) Renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer.

(21) Enter into contracts that are appropriate for, and in the best interest of, the ward.

(22) As to a minor ward, pay expenses of the ward’s support, health, maintenance, and education, if the ward’s parents, or either of them, are alive.

History.—s. 1, ch. 74-106; ss. 22, 26, ch. 75-222; s. 1, ch. 77-174; s. 2, ch. 77-328; s. 281, ch. 79-400; s. 4, ch. 80-203; s. 3, ch. 86-120; s. 2, ch. 87-317; s. 73, ch. 89-96; s. 52, ch. 90-271; s. 1100, ch. 97-102; s. 11, ch. 97-240; s. 5, ch. 2006-77; s. 20, ch. 2006-178; s. 46, ch. 2006-217; s. 12, ch. 2011-183; s. 4, ch. 2017-16; s. 6, ch. 2020-35; s. 6, ch. 2023-287.

Note.—Created from former ss. 744.501, 745.03(2) and (3), 745.20, 745.23.

F.S. 744.441 on Google Scholar

F.S. 744.441 on Casetext

Amendments to 744.441

Arrestable Offenses / Crimes under Fla. Stat. 744.441

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 744.441.

Annotations, Discussions, Cases:

Cases from cite.case.law:

SMITH, v. J. SMITH,, 224 So. 3d 740 (Fla. 2017)

. . . requires “prior approval” by court order before a guardian can engage in certain activities, and section 744.441 . . .

MENDEZ, Jr. v. HAMPTON COURT NURSING CENTER, LLC,, 203 So. 3d 146 (Fla. 2016)

. . . See § 744.441(21), Fla. Stat. . . .

In AMENDMENTS TO FLORIDA PROBATE RULES, 199 So. 3d 835 (Fla. 2016)

. . . . § 744.441(11), Fla. Stat. Powers of guardian upon court approval. § 744.462, Fla. Stat. . . .

RENE, v. SYKES- KENNEDY S., 156 So. 3d 518 (Fla. Dist. Ct. App. 2015)

. . . with respect to revocation, amendment, or distribution of trust property only as provided in section 744.441 . . . Section 744.441, Florida Statutes (2013) sets forth the powers that a guardian may exercise with court . . . See § 744.441(2), Fla. . . . 2013); see also In re Guardianship of Muller, 650 So.2d 698 (Fla. 4th DCA 1995) (holding that section 744.441 . . . PALMER and ORFINGER, JJ., concur. . 744.441 Powers of guardian upon court approval. — After obtaining . . .

ROMANO, D. v. OLSHEN, v. P. L. v. D., 153 So. 3d 912 (Fla. Dist. Ct. App. 2014)

. . . Section 744.441(16), Florida Statutes (2012), allows a guardian, with court approval, to pay “reasonable . . .

In J. S. J. v. J. PENA, M. D., 109 So. 3d 1281 (Fla. Dist. Ct. App. 2013)

. . . . § 744.441(11), Fla. Stat. . . .

In GUARDIANSHIP OF TROST. s v., 100 So. 3d 1205 (Fla. Dist. Ct. App. 2012)

. . . trial court had authority to allow Matthias Trost to review the Trust accounting reports under section 744.441 . . . However, section 744.441 did not allow the trial court to force the trustee to disclose Trust documents . . . , to notice of the guardian’s petitions to perform any acts requiring court approval under sections 744.441 . . . Notice of a petition to perform any [] acts under s. 744.441 [guardian’s powers requiring court approval . . .

TRACI HANCOCK, v. B. SHARE, Ad, 67 So. 3d 1075 (Fla. Dist. Ct. App. 2011)

. . . no authority to bind the assets of the ward beyond the age of majority pursuant to Florida Statute 744.441 . . . Fourth District struck the trial court’s order, concluding that the trust agreements violated section 744.441 . . . Here, there were no trust documents at issue and, thus, the limitation set forth in section 744.441(19 . . . Instead, the parties in this case submitted a proposed annuity contract which, pursuant to section 744.441 . . . Section 744.441 of the Florida Statutes (2009) reads, in relevant part, as follows: 744.441. . . .

In AMENDMENTS TO FLORIDA PROBATE RULES, 986 So. 2d 576 (Fla. 2008)

. . . . § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.447, Fla. Stat. . . . Settlement of claims. § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.446, Fla. . . . Rights of persons determined incapacitated. § 744.441, Fla. Stat. . . . (b) — (e) [No Change] Committee Notes Rule History 1975 Revision: Implements section 744.441(16), Florida . . . Guardian advocates. § 744.441(13), Fla. Stat. . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES, 964 So. 2d 140 (Fla. 2007)

. . . . § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.447, Fla. Stat. . . . changes in committee notes. 2006 Revision: New (a)(6) added to incorporate 2006 amendment to section 744.441 . . . Rights of persons determined incapacitated. § 744.441, Fla. Stat. . . .

In L. COCKE D., 371 B.R. 554 (Bankr. M.D. Fla. 2007)

. . . claim for constitutional homestead protection on the Real Property, merely because Florida Statutes § 744.441 . . . Therefore, in accordance with Florida Statutes, § 744.441 the Debtors would need to obtain court approval . . . Section 744.441 lists 22 separate acts that a guardian may take on behalf of their ward(s), after obtaining . . . Stat. § 744.441(20) (2007). . . . As the Debtors' granddaughter obtained her interest in the Trust by inter vivos transfer, § 744.441(20 . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES, 959 So. 2d 1170 (Fla. 2007)

. . . . § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.447, Fla. Stat. . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES, 948 So. 2d 735 (Fla. 2007)

. . . . § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.447, Fla. Stat. . . . Notice of petition for appointment of guardian and hearing. § 744.441(11), Fla. Stat. . . . changes in committee notes. 2006 Revision: New (a)(6) added to incorporate 2006 amendment to section 744.441 . . . Rights of persons determined incapacitated. § 744.441, Fla. Stat. . . . Actions by and against guardian or ward. § 744.441, Fla. Stat. . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES TWO YEAR CYCLE, 912 So. 2d 1178 (Fla. 2005)

. . . . § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.447, Fla. Stat. . . .

AMENDMENTS TO THE FLORIDA PROBATE RULES, 848 So. 2d 1069 (Fla. 2003)

. . . . § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.447, Fla. Stat. . . . Rule lists what guardian shall sign and includes any petition for court approval required by section 744.441 . . . Settlement of claims. § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.446, Fla. . . . Actions by and against guardian or ward. § 744.441, Fla. Stat. . . .

CHASE MANHATTAN BANK, USA, N. A. v. ESTATE OF PATRICIA SILVEIRA,, 815 So. 2d 770 (Fla. Dist. Ct. App. 2002)

. . . . — Reasonable funeral, interment, and grave marker expenses, whether paid by a guardian under s. 744.441 . . .

In GUARDIANSHIP OF D. BERNSTEIN G. A. v. MILLER,, 777 So. 2d 1125 (Fla. Dist. Ct. App. 2001)

. . . trustee suggests in his brief that the authority for the creation of the trusts can be found in section 744.441 . . .

RAINEY v. GUARDIANSHIP OF MACKEY,, 773 So. 2d 118 (Fla. Dist. Ct. App. 2000)

. . . The necessary starting point is section 744.441, Florida Statutes (1999), which provides in part, After . . . procedures. (21) Enter into contracts that are appropriate for, and in the best interest of, the ward. § 744.441 . . . Second, section 744.441 makes clear that the court must approve any proposed exercise of power by the . . . forth for the trial court, the approval or disapproval of a specific exercise of power under section 744.441 . . .

AMENDMENTS TO THE FLORIDA PROBATE RULES, 778 So. 2d 272 (Fla. 2000)

. . . . § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.447, Fla. Stat. . . . Transactions authorized for the personal representative; exceptions. § 744.441(11), Fla. Stat. . . .

REDDICK, v. SUNTRUST BANK, EAST CENTRAL FLORIDA,, 718 So. 2d 950 (Fla. Dist. Ct. App. 1998)

. . . Section 744.441 provides that with court approval, a plenary guardian may: (2) Execute, exercise or release . . . 698 (Fla. 4th DCA 1995), the court allowed a plenary guardian to amend a trust pursuant to section 744.441 . . .

WHITLEY, v. CRAIG,, 710 So. 2d 1375 (Fla. Dist. Ct. App. 1998)

. . . adjudicated incapacitated; doing so was tantamount to amending ward’s will, which was permitted under § 744.441 . . .

TEAGUE, v. ESTATE OF D. HOSKINS,, 709 So. 2d 1373 (Fla. 1998)

. . . . — Reasonable funeral, interment, and grave marker expenses, whether paid by a guardian under s. 744.441 . . . —Reasonable funeral, interment, and grave marker expenses, whether paid by a guardian under s. 744.441 . . .

BANK, NATURE COAST, v. GUARDIANSHIP OF NICHOLS,, 701 So. 2d 107 (Fla. Dist. Ct. App. 1997)

. . . trial court could not authorize the sale of land owned by the guardian to the ward because section 744.441 . . . court held: We thus conclude that the “home plan” in this ease is a transaction prohibited by section 744.441 . . .

TEAGUE, v. ESTATE OF D. HOSKINS,, 684 So. 2d 293 (Fla. Dist. Ct. App. 1996)

. . . . — Reasonable funeral, interment, and grave marker expenses, whether paid by a guardian under s. 744.441 . . .

AMENDMENTS TO FLORIDA PROBATE RULES, 683 So. 2d 78 (Fla. 1996)

. . . . § 744.441, Fla.Stat. Powers of guardian upon court approval. § 744.447, Fla.Stat. . . .

In GUARDIANSHIP OF SHERRY. SHERRY, v. KLEVANSKY,, 668 So. 2d 659 (Fla. Dist. Ct. App. 1996)

. . . Appellee petitioned the court, pursuant to section 744.441, Florida Statutes, to create a new trust from . . . Section 744.441(19), Florida Statutes, permits a property guardian, with court approval, to “[cjreate . . . in the ward’s best interests, § 744.441(21). . . . their wards’ wills, other than in the limited circumstances authorized in subsection 744.441(18). . . . Absent clear legislative authority, subsection 744.441(19) should not be used for that purpose. . . .

In GUARDIANSHIP OF MULLER, L. THEBAUT, v. BOYLE,, 650 So. 2d 698 (Fla. Dist. Ct. App. 1995)

. . . petition for authority to amend trust by concluding that the petition was not authorized by section 744.441 . . . to amend the trust and ruling that such authority to amend the trust was not authorized by section 744.441 . . . consummated, or executed if competent, if the best interest of the ward requires such execution. § 744.441 . . . or “increase” a guardian’s powers, including the house staff analysis summary which reads: Section 744.441 . . . ruling that the power to amend the revocable trust to replace the trustee was not authorized by section 744.441 . . .

SUN BANK AND TRUST COMPANY, v. G. JONES,, 645 So. 2d 1008 (Fla. Dist. Ct. App. 1994)

. . . However, section 744.441(14) appears to prohibit the “home plan,” even if court approval is obtained. . . . Section 744.441(14) first appeared in the Florida Statutes as section 745.03 in Florida’s first major . . . It was recodified as section 744.441(17) in 1975, and as 744.441(14) in 1977. . . . era than the one section 744.441(14) operated in. . . . However, section 744.441(14) continues to bar direct sales of real estate from guardian to ward under . . .

In GUARDIANSHIP OF D. MURPHEY, D. MURPHEY, v. CATHOLIC CHARITIES OF DIOCESE OF PALM BEACH, INC., 630 So. 2d 591 (Fla. Dist. Ct. App. 1993)

. . . report to the court and guardian ad litem as to whether or not any exercise of power pursuant to section 744.441 . . .

GOEKE, v. D. GOEKE,, 613 So. 2d 1345 (Fla. Dist. Ct. App. 1993)

. . . See § 744.441(17), (19), (21), Fla.Stat. (1991). . . . IV.THE GUARDIAN’S POWER UNDER SECTION 744.441(17), (19), AND (21), FLORIDA STATUTES (1991) Because the . . . Section 744.441(18), Florida Statutes (1991), permits a guardian to execute a codicil amending the ward . . . Section 744.441, Florida Statutes (1991), enumerates many powers that the guardian may exercise with . . . Obviously, an exercise of this power, like many other powers described in section 744.441, should be . . .

In AMENDMENTS TO FLORIDA PROBATE RULES, 607 So. 2d 1306 (Fla. 1992)

. . . . § 744.441, Fla.Stat. Powers of guardian upon court approval. § 744.447, Fla.Stat. . . . F.S, 733,705(3) Payment of and objection to claims. 744.441(11), Fla.Stat. . . . Statutory References § 744.441, Fla.Stat. . . . Actions by and against guardian or ward. § 744.441, Fla.Stat. . . . Statutory References § 744.441(13), Fla.Stat. . . .

GLATTHAR, v. E. HOEQUIST,, 600 So. 2d 1205 (Fla. Dist. Ct. App. 1992)

. . . to the court and guardian ad litem as to whether or not any exercise of powers pursuant to section 744.441 . . . Section 744.441, Florida Statutes (1989) makes specific provision (inter alia) that: After obtaining . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES, 584 So. 2d 964 (Fla. 1991)

. . . . § 744.441, Fla.Stat. Powers of guardian upon court approval. § 744.447, Fla.Stat. . . . of resignation and for- order of discharge; and (4) any petition for court approval required by F.S. 744.441 . . . Settlement of claims. § 744.441, Fla.Stat. . . . Statutory References § 744.441, Fla.Stat. . . . Statutory References § 744.441(13), Fla.Stat. . . .

IN RE GUARDIANSHIP OF MARGARET M. ANDERSON, 47 Fla. Supp. 2d 176 (Fla. Cir. Ct. 1991)

. . . before the court and, to the extent that authority may be required pursuant to Florida Statute Section 744.441 . . .

GRAY, v. WORLEY,, 573 So. 2d 873 (Fla. Dist. Ct. App. 1990)

. . . Pursuant to section 744.441(19), Florida Statutes (1989), the guardian may “[ajfter obtaining approval . . .

In GUARDIANSHIP OF TANNER, TANNER, v. JANNIS,, 564 So. 2d 180 (Fla. Dist. Ct. App. 1990)

. . . .; § 744.441, Fla.Stat. (1987). Accordingly, the trial court properly directed Barnett to sell Mrs. . . .

In AMENDMENT TO FLORIDA PROBATE RULE- PART III GUARDIANSHIP, 551 So. 2d 452 (Fla. 1989)

. . . of resignation and for order of discharge; and (4) any petition for court approval required by F.S. 744.441 . . . When authorization or confirmation of any act of the guardian is required pursuant to F.S. 744.441 or . . . Notice of a petition to perform any other acts under F.S. 744.441 or F.S. 744.446 shall be given to the . . .

HATCHER, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,, 545 So. 2d 400 (Fla. Dist. Ct. App. 1989)

. . . Although Section 744.441(19), Florida Statutes (1987), may authorize a guardian, upon court approval, . . .

THE FLORIDA BAR. In Re RULES OF PROBATE AND GUARDIANSHIP PROCEDURE, 537 So. 2d 500 (Fla. 1988)

. . . F.S. 744.441 Powers of guardian upon court approval. . . . F.S. 744.441(11) Powers of guardian upon court approval. RULE 5.070. . . . F.S. 744.441(13) Powers of guardian upon court approval. . . . F.S. 744.441 Powers of guardian upon court approval. . . . Statutory Reference F.S. 744.441 Powers of guardian upon court approval. . . .

THE FLORIDA BAR. In Re RULES OF PROBATE AND GUARDIANSHIP PROCEDURE, 531 So. 2d 1261 (Fla. 1988)

ARONSTAM v. BERNSTEIN,, 22 Fla. Supp. 2d 96 (Fla. Cir. Ct. 1987)

. . . See also Sections 744.441 and 744.444, Florida Statutes (1983) (Florida Guardianship Law). 9. . . .

A. BRYAN, III, v. CENTURY NATIONAL BANK,, 498 So. 2d 868 (Fla. 1986)

. . . . § 744.441, Fla.Stat. (1985). . . . Section 744.441(17) provides expressly therefor.” 468 So.2d at 245. We disagree. . . . Section 744.441(17) involves powers of the guardian, not the ward. . . . In dealing with that property, then, he must obtain court approval if required by section 744.441, and . . .

CENTURY NATIONAL BANK OF BROWARD, v. A. BRYAN, III, H. BRYAN, Sr. v. A. BRYAN, III, P., 468 So. 2d 243 (Fla. Dist. Ct. App. 1985)

. . . by transferring the subject property “as part of an estate planning procedure, as contemplated in § 744.441 . . .

WEBSTER MOOREFIELD, P. A. A. A. v. CITY NATIONAL BANK OF MIAMI, C. W. C. W., 453 So. 2d 441 (Fla. Dist. Ct. App. 1984)

. . . See § 744.441(17) (involuntary guardian may make gifts of ward’s property to members of ward’s family . . . specifically what the guardian may do with respect to the ward’s property with court approval, Section 744.441 . . . Under Section 744.441(12), a guardian may sell the personal property of the ward only with the approval . . .

COMMUNITY FEDERAL SAVINGS AND LOAN ASSOCIATION OF PALM BEACHES, v. L. WRIGHT, W. Jr., 452 So. 2d 638 (Fla. Dist. Ct. App. 1984)

. . . Again in Section 744.441 the guardian may act only after obtaining approval of the court in (7) abandoning . . .

THE FLORIDA BAR. In FLORIDA RULES OF PROBATE AND GUARDIANSHIP PROCEDURE, 387 So. 2d 949 (Fla. 1980)

. . . Notice of a petition to perform any other act under FGL 744.441 shall be given to the guardian of the . . . (d) An order for any other act permitted under FGL 744.441 shall describe the permitted act and authorize . . .

In GUARDIANSHIP OF F. BOHAC,, 380 So. 2d 550 (Fla. Dist. Ct. App. 1980)

. . . Section 744.441(17), Florida Statutes (1979), reads: 744.441 Powers of guardian upon court approval. . . .

THE FLORIDA BAR. In SUPPLEMENTAL PETITION FOR CHANGES IN FLORIDA RULES OF PROBATE AND GUARDIANSHIP PROCEDURE, 344 So. 2d 828 (Fla. 1977)

. . . approval of resignation and for order of discharge; and (4) Any petition or court approval required by FGL 744.441 . . . • Rule lists what guardian shall sign and includes any petition for court approval required by FGL 744.441 . . . Notice of a petition to perform any other act under FGL 744.441 shall be given to the guardian of the . . . (d) An order for any other act permitted under FGL 744.441 shall describe the permitted act and authorize . . . Implements FGL 744.441(16). . . .