Florida Statute 744.446 | Lawyer Caselaw & Research

The 2024 Florida Statutes

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 Citing Statute 744.446

Total Results: 20

In Re: Amendments to the Florida Probate Rules - 2021 Fast-Track Report

Court: Fla. | Date Filed: 2021-11-04T00:53:00-07:00

Snippet: accounting procedures in certain cases. § 744.446, Fla. Stat. Conflicts of interest; prohibited activities

In Re: Amendments to the Florida Probate Rules - 2020 Fast-Track Report

Court: Fla. | Date Filed: 2021-02-17T23:53:00-08:00

Snippet: including listing any activities designated in section 744.446(3), Florida Statutes; (7) the reasons…(c)(6) amended to include reference to section 744.446, Florida Statutes, and subdivision (c)(9) amended…accounting procedures in certain cases. § 744.446, Fla. Stat. Conflicts of interest; prohibited activities…including listing any activities designated in section 744.446(3), Florida Statutes; (8) the…(a)(7) amended to include reference to section 744.446, Florida Statutes, and subdivision (a)(9) amended

In Re: Amendments to the Florida Probate Rules - 2020 Fast-Track Report

Court: Fla. | Date Filed: 2020-12-30T23:53:00-08:00

Snippet: including listing any activities designated in section 744.446(3), Florida Statutes; (7) the…(c)(6) amended to include reference to section 744.446, Florida Statutes, and subdivision (c)(9) amended…accounting procedures in certain cases. § 744.446, Fla. Stat. Conflicts of interest; prohibited activities…including listing any activities designated in section 744.446(3), Florida Statutes; (8) the…(a)(7) amended to include reference to section 744.446, Florida Statutes, and subdivision (a)(9) amended

In Re: Amendments to the Florida Probate Rules - 2019 Fast-Track Report

Court: Fla. | Date Filed: 2020-01-15T23:53:00-08:00

Snippet: Actions by and against guardian or ward. § 744.446, Fla. Stat. Conflicts of interest; prohibited activities

Glenda Martinez Smith v. J. Alan Smith

Court: Fla. | Date Filed: 2017-08-31T00:00:00-07:00

Citation: 224 So. 3d 740, 42 Fla. L. Weekly Supp. 773, 2017 Fla. LEXIS 1759

Snippet: the court.” (Emphasis added.) Similarly, section 744.446(2), Florida Statutes (2016), requires “prior approval

Swan v. Trost

Court: Fla. Dist. Ct. App. | Date Filed: 2012-11-09T00:00:00-08:00

Citation: 100 So. 3d 1205

Snippet: violation of her fiduciary duty as guardian. See § 744.446, Fla. Stat. (2009).2 Count I *1208of the petition…takings, and/or for damages pursuant to section 744.446(4). See supra note 2. Count VII requested attorney…incapacitated settlor’s property. . Guardianship section 744.446 regarding conflicts of interest, prohibited activities…guardian’s powers requiring court approval) or s. 744.446 [conflicts of interest; see n. 2] shall be given

Kirton v. Fields

Court: Fla. | Date Filed: 2008-12-10T23:53:00-08:00

Citation: 997 So. 2d 349

Snippet: creative services or professional sport contract); § 744.446 (parental conflict of interests with minor child

In Re Amend. to Florida Probate Rules

Court: Fla. | Date Filed: 2008-07-10T00:53:00-07:00

Citation: 986 So. 2d 576

In re Amendments to the Florida Probate Rules

Court: Fla. | Date Filed: 2007-02-01T00:00:00-08:00

Citation: 948 So. 2d 735

TMRMC v. Petersen

Court: Fla. Dist. Ct. App. | Date Filed: 2006-01-16T23:53:00-08:00

Citation: 920 So. 2d 75

Snippet: interest with the minor as defined by section 744.446, Florida Statutes (2004). *79 If an action is brought

Wixtrom v. Department of Children & Families

Court: Fla. Dist. Ct. App. | Date Filed: 2004-01-09T00:00:00-08:00

Citation: 864 So. 2d 534, 2004 Fla. App. LEXIS 161

Snippet: and must be independent and impartial. Section 744.446, F.S. (2003). Decisions will have to be made regarding…reasons why a guardian should be appointed. Section 744.446, Florida Statutes, creates a “fiduciary” relationship

In Re Guardianship of JDS

Court: Fla. Dist. Ct. App. | Date Filed: 2004-01-08T23:53:00-08:00

Citation: 864 So. 2d 534

Amendments to the Florida Probate Rules

Court: Fla. | Date Filed: 2003-06-19T00:00:00-07:00

Citation: 848 So. 2d 1069

Snippet: Stat. Actions by and against guardian or ward. § 744.446, Fla. Stat. Conflicts of interest; prohibited activities…Stat. Powers of guardian upon court approval. § 744.446, Fla. Stat. Conflicts of interest; prohibited activities…Stat. Powers of guardian upon court approval. § 744.446, Fla. Stat. Conflicts of interest; prohibited activities

Poteat v. Guardianship of Poteat

Court: Fla. Dist. Ct. App. | Date Filed: 2000-10-11T00:53:00-07:00

Citation: 771 So. 2d 569

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

Sun Bank and Trust Co. v. Jones

Court: Fla. Dist. Ct. App. | Date Filed: 1994-09-30T00:53:00-07:00

Citation: 645 So. 2d 1008

Snippet: hearing date on the petition. Pursuant to section 744.446, any transaction potentially involving a conflict…argued the "home plan" violated section 744.446 of the Florida Guardianship Law. That statute provides…supplied) This is a much older statute than section 744.446. Section 744.441(14) first appeared in the Florida…Guardianship, 152 Fla. 31, 10 So.2d 661 (1942). Section 744.446, has a valid but different field in which to operate… no conflict of interest exists. [15] Section 744.446(3) provides: Any activity prohibited by this section

A.J. v. State, Department of Health & Rehabilitative Services

Court: Fla. Dist. Ct. App. | Date Filed: 1994-01-14T00:00:00-08:00

Citation: 630 So. 2d 1187

Snippet: for physical therapy was improper under section 744.446(2)(d), Florida Statutes (1991),1 which constitutes…which the guardian wrongfully made under section 744.446(2)(d) and the inference, totally unsupported by…in part. FRANK, C.J., and BLUE, J., concur. . 744.446 Conflicts of interest; prohibited activities; court

Aj v. State, Dhrs

Court: Fla. Dist. Ct. App. | Date Filed: 1994-01-13T23:53:00-08:00

Citation: 630 So. 2d 1187

Snippet: for physical therapy was improper under section 744.446(2)(d), Florida Statutes (1991),[1] which constitutes…which the guardian wrongfully made under section 744.446(2)(d) and the inference, totally unsupported by

Goeke v. Goeke

Court: Fla. Dist. Ct. App. | Date Filed: 1993-02-11T23:53:00-08:00

Citation: 613 So. 2d 1345

Snippet: ward's best interests at this time. See § 744.446, Fla. Stat. (1991). I. THE GUARDIANSHIP AND THE

In re Amendments to the Florida Probate Rules

Court: Fla. | Date Filed: 1992-09-24T00:00:00-07:00

Citation: 607 So. 2d 1306

Snippet: Fla.Stat. Actions by and against guardian or ward. § 744.446, Fla.Stat. Conflicts of interest; prohibited activities…Fla.Stat. Powers of guardian upon court approval. § 744.446, Fla.Stat. Conflicts of interest; prohibited activities

Glatthar v. Hoequist

Court: Fla. Dist. Ct. App. | Date Filed: 1992-06-05T00:00:00-07:00

Citation: 600 So. 2d 1205

Snippet: which a conflict of interest may occur); and § 744.446(1) ("[i]t is essential to the proper conduct