The 2023 Florida Statutes (including Special Session C)

Title XLIII
DOMESTIC RELATIONS

Chapter 744
GUARDIANSHIP

View Entire Chapter

F.S. 744.446

744.446 Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty.—

(1) It is essential to the proper conduct and management of a guardianship that the guardian be independent and impartial. The fiduciary relationship which exists between the guardian and the ward may not be used for the private gain of the guardian other than the remuneration for fees and expenses provided by law. The guardian may not incur any obligation on behalf of the guardianship which conflicts with the proper discharge of the guardian’s duties.

(2) A guardian may not offer, pay, solicit, or receive a commission, benefit, bonus, rebate, or kickback, directly or indirectly, overtly or covertly, in cash or in kind, or engage in a split-fee arrangement in return for referring, soliciting, or engaging in a transaction for goods or services on behalf of an alleged incapacitated person or minor, or a ward, for past or future goods or services.

(3) Unless prior approval is obtained by court order, or unless such relationship existed before appointment of the guardian and is disclosed to the court in the petition for appointment of guardian, a guardian may not:

(a) Have any interest, financial or otherwise, direct or indirect, in any business transaction or activity with the ward, the judge presiding over the case, any member of the appointed examining committee, any court employee involved in the guardianship process, or the attorney for the ward;

(b) Acquire an ownership, possessory, security, or other pecuniary interest adverse to the ward;

(c) Be designated as a beneficiary on any life insurance policy, pension, or benefit plan of the ward unless such designation was validly made by the ward before adjudication of incapacity of the ward; and

(d) Directly or indirectly purchase, rent, lease, or sell any property or services from or to any business entity of which the guardian or the guardian’s spouse or any of the guardian’s lineal descendants, or collateral kindred, is an officer, partner, director, shareholder, or proprietor, or has any financial interest.

(4) Any activity prohibited by this section is voidable during the term of the guardianship or by the personal representative of the ward’s estate, and the guardian is subject to removal and to imposition of personal liability through a proceeding for surcharge, in addition to any other remedies otherwise available.

(5) In the event of a breach by the guardian of the guardian’s fiduciary duty, the court shall take those necessary actions to protect the ward and the ward’s assets.

History.—s. 75, ch. 89-96; s. 54, ch. 90-271; s. 1102, ch. 97-102; s. 6, ch. 2002-195; s. 7, ch. 2020-35.

F.S. 744.446 on Google Scholar

F.S. 744.446 on Casetext

Amendments to 744.446

Arrestable Offenses / Crimes under Fla. Stat. 744.446

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

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 744.446.

Annotations, Discussions, Cases:

Cases from cite.case.law:

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

. . . Similarly, section 744.446(2), Florida Statutes (2016), requires “prior approval” by court order before . . .

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

. . . See § 744.446, Fla. Stat. (2009). . . . illegal transactions, levy a surcharge, disgorge improper takings, and/or for damages pursuant to section 744.446 . . . Guardianship section 744.446 regarding conflicts of interest, prohibited activities, court approval, . . . petition to perform any [] acts under s. 744.441 [guardian’s powers requiring court approval) or s. 744.446 . . .

KIRTON, v. FIELDS, v. H. v., 997 So. 2d 349 (Fla. 2008)

. . . proceedings); § 743.09(3) (contract for artistic or creative services or professional sport contract); § 744.446 . . .

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

. . . . § 744.446, Fla. Stat. . . . Powers of guardian upon court approval. § 744.446, Fla. Stat. . . .

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

. . . . § 744.446, Fla. Stat. . . . Powers of guardian upon court approval. § 744.446, Fla. Stat. . . .

TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, INC. v. PETERSEN Dr. M., 920 So. 2d 75 (Fla. Dist. Ct. App. 2006)

. . . contract or when the parent has any other conflict of interest with the minor as defined by section 744.446 . . .

In GUARDIANSHIP OF J. D. S. v., 864 So. 2d 534 (Fla. Dist. Ct. App. 2004)

. . . Section 744.446, F.S. (2003). . . . Section 744.446, Florida Statutes, creates a “fiduciary” relationship between the ward and the guardian . . .

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

. . . . § 744.446, Fla. Stat. . . . Powers of guardian upon court approval. § 744.446, Fla. Stat. . . . Powers of guardian upon court approval. § 744.446, Fla. Stat. . . .

POTEAT, v. GUARDIANSHIP OF POTEAT,, 771 So. 2d 569 (Fla. Dist. Ct. App. 2000)

. . . They also rely on the more specific section 744.446(2), which provides: Unless prior approval is obtained . . .

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

. . . Pursuant to section 744.446, any transaction potentially involving a conflict of interest between guardian . . . Linda originally argued the “home plan” violated section 744.446 of the Florida Guardianship Law. . . . (emphasis supplied) This is a much older statute than section 744.446. . . . Section 744.446, has a valid but different field in which to operate. . . . Section 744.446(3) provides: Any activity prohibited by this section is voidable during the term of the . . .

A. J. J. C. v. STATE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,, 630 So. 2d 1187 (Fla. Dist. Ct. App. 1994)

. . . conclusions of law: (1) the payment to the guardian’s husband for physical therapy was improper under section 744.446 . . . predicated on the chiropractor having received payments which the guardian wrongfully made under section 744.446 . . . FRANK, C.J., and BLUE, J., concur. . 744.446 Conflicts of interest; prohibited activities; court approval . . .

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

. . . See § 744.446, Fla.Stat. (1991). I. . . .

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

. . . . § 744.446, Fla.Stat. Conflicts of interest; prohibited activities; court approval. RULE 5.122. . . . Powers of guardian upon court approval. § 744.446, Fla.Stat. . . .

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

. . . not appoint a guardian in any other circumstance in which a conflict of interest may occur); and § 744.446 . . .

BALLARD, v. COWAN,, 599 So. 2d 1306 (Fla. Dist. Ct. App. 1992)

. . . See § 744.446, Fla.Stat. (1991). . . .

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

. . . . § 744.446, Fla.Stat. . . . Notice of a petition to perform any other acts under -F,S.-744,441 or — F.S».744.446 requiring a court . . .

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

. . . Notice of a petition to perform any other acts under F.S. 744.441 or F.S. 744.446 shall be given to the . . .