Florida Statutes
Fla. Stat. § 744.361 (2025)
Powers and duties of guardian.
✓ 2025 Florida Statutes — current through the 2025 Regular Session
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744.361 Powers and duties of guardian.—
(1) The guardian of an incapacitated person is a fiduciary and may exercise only those rights that have been removed from the ward and delegated to the guardian. The guardian of a minor shall exercise the powers of a plenary guardian.
(2) The guardian shall act within the scope of the authority granted by the court and as provided by law.
(3) The guardian shall act in good faith.
(4) A guardian may not act in a manner that is contrary to the ward’s best interests under the circumstances.
(5) A guardian who has special skills or expertise, or is appointed in reliance upon the guardian’s representation that the guardian has special skills or expertise, shall use those special skills or expertise when acting on behalf of the ward.
(6) The guardian shall file an initial guardianship report in accordance with s. 744.362.
(7) The guardian shall file a guardianship report annually in accordance with s. 744.367.
(8) The guardian of the person shall implement the guardianship plan.
(9) When two or more guardians have been appointed, the guardians shall consult with each other.
(10) A guardian who is given authority over any property of the ward shall:
(a) Protect and preserve the property and invest it prudently as provided in chapter 518, apply it as provided in s. 744.397, and keep clear, distinct, and accurate records of the administration of the ward’s property.
(b) Perform all other duties required of him or her by law.
(c) At the termination of the guardianship, deliver the property of the ward to the person lawfully entitled to it.
(11) The guardian shall observe the standards in dealing with the guardianship property that would be observed by a prudent person dealing with the property of another.
(12) The guardian, if authorized by the court, shall take possession of all of the ward’s property and of the rents, income, issues, and profits from it, whether accruing before or after the guardian’s appointment, and of the proceeds arising from the sale, lease, or mortgage of the property or of any part. All of the property and the rents, income, issues, and profits from it are assets in the hands of the guardian for the payment of debts, taxes, claims, charges, and expenses of the guardianship and for the care, support, maintenance, and education of the ward or the ward’s dependents, as provided for under the terms of the guardianship plan or by law.
(13) Recognizing that every individual has unique needs and abilities, a guardian who is given authority over a ward’s person shall, as appropriate under the circumstances:
(a) Consider the expressed desires of the ward as known by the guardian when making decisions that affect the ward.
(b) Allow the ward to maintain contact with family and friends unless the guardian believes that such contact may cause harm to the ward.
(c) Not restrict the physical liberty of the ward more than reasonably necessary to protect the ward or another person from serious physical injury, illness, or disease.
(d) Assist the ward in developing or regaining capacity, if medically possible.
(e) Notify the court if the guardian believes that the ward has regained capacity and that one or more of the rights that have been removed should be restored to the ward.
(f) To the extent applicable, make provision for the medical, mental, rehabilitative, or personal care services for the welfare of the ward.
(g) To the extent applicable, acquire a clear understanding of the risks and benefits of a recommended course of health care treatment before making a health care decision.
(h) Evaluate the ward’s medical and health care options, financial resources, and desires when making residential decisions that are best suited for the current needs of the ward.
(i) Advocate on behalf of the ward in institutional and other residential settings and regarding access to home and community-based services.
(j) When not inconsistent with the person’s goals, needs, and preferences, acquire an understanding of the available residential options and give priority to home and other community-based services and settings.
(14) A professional guardian must ensure that each of the guardian’s wards is personally visited by the guardian or one of the guardian’s professional staff at least once each calendar quarter. During the personal visit, the guardian or the guardian’s professional staff person shall assess:
(a) The ward’s physical appearance and condition.
(b) The appropriateness of the ward’s current living situation.
(c) The need for any additional services and the necessity for continuation of existing services, taking into consideration all aspects of social, psychological, educational, direct service, health, and personal care needs.
(d) The nature and extent of visitation and communication with the ward’s family and friends.
This subsection does not apply to a professional guardian who has been appointed only as guardian of the property.
History.—s. 1, ch. 74-106; ss. 6, 26, ch. 75-222; s. 45, ch. 89-96; s. 29, ch. 90-271; s. 1084, ch. 97-102; s. 13, ch. 2006-178; s. 45, ch. 2006-217; s. 15, ch. 2015-83.
Note.—Created from former ss. 744.48, 744.49.
Notes of Decisions
Cited in 21
cases (3 in the last 5 years), 1978–2023 · leading case: Romano v. Olshen, 153 So. 3d 912 (Fla. 4th DCA 2014).
Romano v. Olshen, 153 So. 3d 912 (Fla. 4th DCA 2014). “” § 744.361(6)(a), Fla. Stat. (2012). A court may authorize a guardian of property to “apply the ward’s income” to the “ward’s care, support, education, and maintenance”; “[i]f the income is not sufficient for these purposes, the court may authorize the expenditure of part of…”
McGilton v. Millman, 868 So. 2d 1259 (Fla. 4th DCA 2004). “Section 744.361, Florida Statutes (1997), specifically includes pre-guardianship assets in the property that the guardian shall, with court approval, take possession of.”
Bergman v. Serns, 443 So. 2d 130 (Fla. 3d DCA 1983). “Section 744.361, Florida Statutes (1981) provides that a guardian's selection of a place of residence for his incompetent ward "shall be subject to review by the [circuit] court;" and upon the guardian's petition for "[a]ny change of care, maintenance or treatment" for his ward,…”
Kern v. Kern, 360 So. 2d 482 (Fla. 4th DCA 1978). “, and DURANT, N. JOSEPH, Jr., Associate Judge, concur.”
In Re Amendments to the Florida Prob. Rules, 181 So. 3d 480 (Fla. 2015). “Judicial Review), subdivision (a) (Contents), to provide that a petition for interim judicial review may allege that the guardian is acting-'in a manner contrary-to section 744.361, Florida Statutes. See ch.”
In Re Guardianship of Sapp, 868 So. 2d 687 (Fla. 2d DCA 2004). “§ 744.361(1). Depending upon the extent of the ward's incapacity, those rights may include: (1) At least in some instances, to apply for government benefits, section 744.”
Claire's Boutiques, Inc. v. Locastro, 85 So. 3d 1192 (Fla. 4th DCA 2012). “The monies awarded for Alexis as a judgment in this case would be separate and distinct from the judgment awarded for Claire’s as a result of the indemnity agreement signed by Ms. Locas-tro as an individual.”
Leaird v. Leaird, 540 So. 2d 243 (Fla. 4th DCA 1989). “2d at 484 ; § 744.361(1), Fla. Stat. (1987). Therefore, although the child had not reached his majority in this case, there was no legal obligation on appellee's part to furnish the wherewithal to send him to college.”
Mills v. Phillips, 407 So. 2d 302 (Fla. 4th DCA 1981). “Section 744.361, Florida Statutes (1979), provides in part: (1) It is the duty of the guardian of the person to take care of the person of the ward, to treat him humanely, and, if he is a minor, to see that he is properly educated and that he has the opportunity to learn a…”
Florida Bar, 537 So. 2d 500 (Fla. 1988). “F.S. 744.361(3) Duties and powers of guardian of the person.”
Bardol v. Martin, 763 So. 2d 1119 (Fla. 4th DCA 1999). “" See § 744.361(1). Because the duty to support one's children is so long and so well established, apparently the legislature has thought it unnecessary to add a provision in any statute that among the duties of the natural guardians of minor children is the obligation to…”
State v. Badalich, 479 So. 2d 197 (Fla. 5th DCA 1985). “The State also argues that Fla. Stat. 744.361(2) gives the mother guardianship of the person, as well as the property of the child.”
— 744.361(1) — 6 cases
Kern v. Kern, 360 So. 2d 482 (Fla. 4th DCA 1978). “, and DURANT, N. JOSEPH, Jr., Associate Judge, concur.”
In Re Guardianship of Sapp, 868 So. 2d 687 (Fla. 2d DCA 2004). “§ 744.361(1). Depending upon the extent of the ward's incapacity, those rights may include: (1) At least in some instances, to apply for government benefits, section 744.”
Leaird v. Leaird, 540 So. 2d 243 (Fla. 4th DCA 1989). “2d at 484 ; § 744.361(1), Fla. Stat. (1987). Therefore, although the child had not reached his majority in this case, there was no legal obligation on appellee's part to furnish the wherewithal to send him to college.”
Bardol v. Martin, 763 So. 2d 1119 (Fla. 4th DCA 1999). “" See § 744.361(1). Because the duty to support one's children is so long and so well established, apparently the legislature has thought it unnecessary to add a provision in any statute that among the duties of the natural guardians of minor children is the obligation to…”
O'Hare v. Hamric, 868 So. 2d 687 (Fla. 2d DCA 2004).
— 744.361(12) — 1 case
Ladonna Hudkins Vs Matthew L. Hudkins, Guardian of the Person & the Prop. of the Ward, Keith L. Hudkins (Fla. 5th DCA 2023).
— 744.361(13) — 2 cases
In Re Amendments to the Florida Prob. Rules, 181 So. 3d 480 (Fla. 2015). “Judicial Review), subdivision (a) (Contents), to provide that a petition for interim judicial review may allege that the guardian is acting-'in a manner contrary-to section 744.361, Florida Statutes. See ch.”
Terri Foster v. Guardianship of Cayman Foster (Fla. 4th DCA 2023).
— 744.361(13)(b) — 1 case
Terri Foster v. Guardianship of Cayman Foster (Fla. 4th DCA 2023).
— 744.361(2) — 1 case
State v. Badalich, 479 So. 2d 197 (Fla. 5th DCA 1985). “The State also argues that Fla. Stat. 744.361(2) gives the mother guardianship of the person, as well as the property of the child.”
— 744.361(3) — 3 cases
Bergman v. Serns, 443 So. 2d 130 (Fla. 3d DCA 1983). “Section 744.361, Florida Statutes (1981) provides that a guardian's selection of a place of residence for his incompetent ward "shall be subject to review by the [circuit] court;" and upon the guardian's petition for "[a]ny change of care, maintenance or treatment" for his ward,…”
Florida Bar, 537 So. 2d 500 (Fla. 1988). “F.S. 744.361(3) Duties and powers of guardian of the person.”
Florida Bar, 531 So. 2d 1261 (Fla. 1988).
— 744.361(6)(a) — 3 cases
Romano v. Olshen, 153 So. 3d 912 (Fla. 4th DCA 2014). “” § 744.361(6)(a), Fla. Stat. (2012). A court may authorize a guardian of property to “apply the ward’s income” to the “ward’s care, support, education, and maintenance”; “[i]f the income is not sufficient for these purposes, the court may authorize the expenditure of part of…”
Claire's Boutiques, Inc. v. Locastro, 85 So. 3d 1192 (Fla. 4th DCA 2012). “The monies awarded for Alexis as a judgment in this case would be separate and distinct from the judgment awarded for Claire’s as a result of the indemnity agreement signed by Ms. Locas-tro as an individual.”
In re Guardianship of Anderson, 47 Fla. Supp. 2d 176 (Fla. Cir. Ct. 1991).
— 744.361(6)(c) — 1 case
Hancock v. Share, 67 So. 3d 1075 (Fla. 5th DCA 2011).
— 744.361(6)(e) — 1 case
Hancock v. Share, 67 So. 3d 1075 (Fla. 5th DCA 2011).
— 744.361(8) — 1 case
McGilton v. Millman, 868 So. 2d 1259 (Fla. 4th DCA 2004). “Section 744.361, Florida Statutes (1997), specifically includes pre-guardianship assets in the property that the guardian shall, with court approval, take possession of.”
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