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Florida Statute 744.446 - Full Text and Legal Analysis
Florida Statute 744.446 | Lawyer Caselaw & Research
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The 2025 Florida Statutes

Title XLIII
DOMESTIC RELATIONS
Chapter 744
GUARDIANSHIP
View Entire Chapter
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 CourtListener

Amendments to 744.446


Annotations, Discussions, Cases:

Cases Citing Statute 744.446

Total Results: 23  |  Sort by: Relevance  |  Newest First

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Kirton v. Fields, 997 So. 2d 349 (Fla. 2008).

Cited 29 times | Published | Supreme Court of Florida | 2008 WL 5170603

...); § 73.021(4) (eminent domain proceedings); § 390.01115(4)(a) (termination of pregnancy without parental notification); § 731.303(4) (probate proceedings); § 743.09(3) (contract for artistic or creative services or professional sport contract); § 744.446 (parental conflict of interests with minor child), Florida Statutes (2004))....
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Sun Bank & Trust Co. v. Jones, 645 So. 2d 1008 (Fla. 5th DCA 1994).

Cited 6 times | Published | Florida 5th District Court of Appeal | 1994 Fla. App. LEXIS 9379, 1994 WL 531274

...e fact that doctors at the Tuscaloosa facility approved of his "home plan" for Donald. The petition does not show that a copy of it was mailed or served on anyone. Nor is there in this record any notice of a hearing date on the petition. Pursuant to section 744.446, any transaction potentially involving a conflict of interest between guardian and ward must be approved in advance by the court, and pursuant to section 744.447 notice of such petition must be given to the ward, the next of kin, and...
...rs." No final hearing was ever held on the "home plan" and the stay was never lifted. [11] Thus, aside from a short time in 1990, Jones was not authorized by the court to proceed with the "home plan." Linda originally argued the "home plan" violated section 744.446 of the Florida Guardianship Law....
...an... may * * * * * * (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... ." (emphasis supplied) This is a much older statute than section 744.446....
..., and only if the guardian does not own the real estate to be sold to the ward's estate. Cf. Webster & Moorefield, P.A. v. City National Bank of Miami, 453 So.2d 441 (Fla. 3d DCA 1984); In re Nusbaum's Guardianship, 152 Fla. 31, 10 So.2d 661 (1942). Section 744.446, has a valid but different field in which to operate....
...See In re Nusbaum's Guardianship, 152 Fla. 31, 10 So.2d 661 (1942). [14] See Fitts v. The Guardianship Estates of Campbell, 466 So.2d 431 (Fla. 5th DCA 1985); § 744.108(3), Fla. Stat. In awarding fees, the court must have determined no conflict of interest exists. [15] Section 744.446(3) provides: 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 liabilit...
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In Re Amendments to the Florida Prob. Rules, 584 So. 2d 964 (Fla. 1991).

Cited 5 times | Published | Supreme Court of Florida | 16 Fla. L. Weekly Supp. 557, 1991 Fla. LEXIS 1335, 1991 WL 169366

...Stat. Duty to file annual guardianship report. § 744.3675, Fla. Stat. Annual guardianship plan. § 744.3678, Fla. Stat. Annual accounting. § 744.387, Fla. Stat. Settlement of claims. § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.446, Fla....
...d conforms to the guardianship plan. (b) Notice. No notice of a petition to authorize sale of perishable personal property or of property rapidly deteriorating shall be required. Notice of a petition to perform any other acts under F.S. 744.441 or F.S. 744.446 requiring a court order shall be given to the ward, to the next of kin, if any, and to those interested persons who have filed requests for notices and copies of pleadings as required elsewhere in these rules....
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Poteat v. Guardianship of Poteat, 771 So. 2d 569 (Fla. 4th DCA 2000).

Cited 3 times | Published | Florida 4th District Court of Appeal | 2000 WL 1505082

...Guy and Ann, in arguing that there is a conflict of interest, rely on section 744.309(3), Florida Statutes (Supp.1998), which provides in part that "the court may not appoint a guardian in any other circumstance in which a conflict of interest may occur." They also rely on the more specific section 744.446(2), which provides: Unless prior approval is obtained by court order, or unless such relationship existed prior to appointment of the guardian and is disclosed to the court in the petition for appointment of a guardian, a guardian may...
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TMRMC v. Petersen, 920 So. 2d 75 (Fla. 1st DCA 2006).

Cited 3 times | Published | Florida 1st District Court of Appeal

...essional sport contract for a minor. A guardian ad litem is mandatory, however, when the parent or guardian receives remuneration or financial gain under the contract or when the parent has any other conflict of interest with the minor as defined by section 744.446, Florida Statutes (2004)....
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In Re Guardianship of JDS, 864 So. 2d 534 (Fla. 5th DCA 2004).

Cited 2 times | Published | Florida 5th District Court of Appeal | 2004 WL 42619

...The guardian for the Respondent [J.D.S.] would be prohibited from exercising this same fiduciary duty on behalf of the Respondent's [J.D.S.] unborn child. Section 415.102(10), F.S. (2003). Additionally, a guardian must avoid a conflict of interest and must be independent and impartial. Section 744.446, F.S....
...evidence when that evidence is exparte and uncontested. Thus, a guardian can and should be appointed for the unborn baby to ensure compliance with Florida law should abortion be considered. There are other reasons why a guardian should be appointed. Section 744.446, Florida Statutes, creates a "fiduciary" relationship between the ward and the guardian by requiring that in the management of the guardianship, the guardian be independent and impartial....
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Goeke v. Goeke, 613 So. 2d 1345 (Fla. 2d DCA 1993).

Cited 2 times | Published | Florida 2nd District Court of Appeal | 1993 WL 33787

...lude that the interests of justice will be served by a new hearing concerning the terms and conditions of the IRA contracts, including the designation of beneficiaries, that would be appropriate for and in the ward's best interests at this time. See § 744.446, Fla....
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Glenda Martinez Smith v. J. Alan Smith, 224 So. 3d 740 (Fla. 2017).

Cited 2 times | Published | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 773, 2017 Fla. LEXIS 1759, 2017 WL 3774702

...difference intentional and will assign meaning to the omission”). Section 744.3215(4), Florida Statutes (2016), lists actions a guardian may not take “[w]ith~ out first obtaining specific authority from the court.” (Emphasis added.) Similarly, section 744.446(2), Florida Statutes (2016), requires “prior approval” by court order before a guardian can engage in certain activities, and section 744.441, Florida *748 Statutes (2016), delineates the powers a guardian has “[ajfter obtaining approval of the court.” (Emphasis added.) See also § 744.1098(1), Fla Stat....
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Aj v. State, Dhrs, 630 So. 2d 1187 (Fla. 2d DCA 1994).

Cited 1 times | Published | Florida 2nd District Court of Appeal

...The circuit court refused to approve the guardian's annual guardianship report covering the period from May 1, 1990, through April 30, 1991. Based on these findings, the hearing officer reached the following conclusions of law: (1) the payment to the guardian's husband for physical therapy was improper under section 744.446(2)(d), Florida Statutes (1991), [1] which constitutes "exploitation," and (2) it can be inferred from the available evidence that the guardian and her husband enjoyed the use of the videotapes that were stored in their home and that the guardian purchased the tapes primarily for the couple's own benefit....
...He was found to be not guilty of the only charge levied against him in the initial report. After the close of the evidence, the hearing officer elected to substitute a new charge of exploitation which was predicated on the chiropractor having received payments which the guardian wrongfully made under section 744.446(2)(d) and the inference, totally unsupported by the record, that the chiropractor benefited from his wife's unauthorized purchases....
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In re Amendment to Florida Prob. Rule—Part III (Guardianship), 551 So. 2d 452 (Fla. 1989).

Published | Supreme Court of Florida | 1989 WL 139493

...a sale, mortgage, or other contract. (b) Notice. No notice of a petition to authorize sale of perishable personal property or of property rapidly deteriorating shall be required. Notice of a petition to perform any other acts under F.S. 744.441 or F.S. 744.446 shall be given to the ward, to the next of kin, if any, and to those interested persons who have filed requests for notices and copies of pleadings as required elsewhere in these rules....
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In re Amendments to the Florida Prob. Rules, 607 So. 2d 1306 (Fla. 1992).

Published | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 636, 1992 Fla. LEXIS 1622, 1992 WL 249483

...Statutory References § 731.303, Fla.Stat. Representation. § 733.308, Fla.Stat. Administrator ad li-tem. § 733.708, Fla.Stat. Compromise. § 744.301, Fla.Stat. Natural guardians. § 744.387, Fla.Stat. Settlement of claims. § 744.391, Fla.Stat. Actions by and against guardian or ward. § 744.446, Fla.Stat....
...Rule History 1992 Revision: New rule. Statutory References § 744.301, Fla.Stat. Natural guardians. § 744.387, Fla.Stat. Settlement of claims. *1376 § 744,391, Fla.Stat. Actions by and against guardian or ward. § 744.441, Fla.Stat. Powers of guardian upon court approval. § 744.446, Fla.Stat....
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Swan v. Trost, 100 So. 3d 1205 (Fla. 2d DCA 2012).

Published | Florida 2nd District Court of Appeal | 2012 Fla. App. LEXIS 19550, 2012 WL 5458080

...(7) The Civil Action should be dismissed without prejudice. Matthias Trost then filed a petition in a separate guardianship proceeding, alleging that Ms. Swan neglected and exploited her uncle’s income, assets, and property in violation of her fiduciary duty as guardian. See § 744.446, Fla....
...Swan to comply with the guardianship statute, to provide notice and annual reports to him as next of kin, and to prohibit insider transactions to prevent mismanagement and waste. Count VI asked the court to void illegal transactions, levy a surcharge, disgorge improper takings, and/or for damages pursuant to section 744.446(4)....
...Section 736.0207 provides that an action to contest the validity of a revocable trust may not be commenced until the trust becomes irrevocable by the settlor's death or by other trust terms, except by the guardian of an incapacitated settlor’s property. . Guardianship section 744.446 regarding conflicts of interest, prohibited activities, court approval, and breach of fiduciary duty, provides in pertinent part: (1) It is essential to the proper conduct and management of a guardianship that the guardian be independent and impartial....
...able cotrustee or successor trustee is available. (Emphasis added). . 744.447 Petition for authorization to act.— [[Image here]] (2) ... Notice of a petition to perform any [] acts under s. 744.441 [guardian’s powers requiring court approval) or s. 744.446 [conflicts of interest; see n....
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In Re: Amendments to the Florida Prob. Rules - 2021 Fast-Track Report (Fla. 2021).

Published | Supreme Court of Florida

...Duty to file annual guardianship report. § 744.3675, Fla. Stat. Annual guardianship plan. § 744.3678, Fla. Stat. Annual accounting. - 19 - § 744.3679, Fla. Stat. Simplified accounting procedures in certain cases. § 744.446, Fla....
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Ballard v. Cowan, 599 So. 2d 1306 (Fla. Dist. Ct. App. 1992).

Published | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 2685, 1992 WL 48900

...ointment is a conflict between the guardian and the ward. No such conflict existed here. The guardian’s appointment was in no way conditioned upon his undertaking to legally represent or perform obligations for the parties advancing the funds. See § 744.446, Fla.Stat....
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Glatthar v. Hoequist, 600 So. 2d 1205 (Fla. Dist. Ct. App. 1992).

Published | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 5821, 1992 WL 118343

...§ 744.312(3)(a), Fla.Stat. (1991). . See Tagliabue v. Fraser, 576 So.2d 401 (Fla. 5th DCA 1991). . See § 744.309(3), Fla.Stat. (1991) ("[t]he court may not appoint a guardian in any other circumstance in which a conflict of interest may occur); and § 744.446(1) ("[i]t is essential to the proper conduct and management of a guardianship that the guardian be independent and impartial")....
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Amendments to the Florida Prob. Rules, 848 So. 2d 1069 (Fla. 2003).

Published | Supreme Court of Florida | 28 Fla. L. Weekly Supp. 495, 2003 Fla. LEXIS 1063, 2003 WL 21402500

...Representation. § 733.308, Fla. Stat. Administrator ad litem. § 733.708, Fla. Stat. Compromise. § 744.301, Fla. Stat. Natural guardians. § 744.387, Fla. Stat. Settlement of claims. § 744.391, Fla. Stat. Actions by and against guardian or ward. § 744.446, Fla....
...Duty to file annual guardianship report. *1149 § 744.3675, Fla. Stat. Annual guardianship plan. § 744.3678, Fla. Stat. Annual accounting. § 744.387, Fla. Stat. Settlement of claims. § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.446, Fla....
...2003 Revision: Committee notes revised. Statutory References § 744.301, Fla. Stat. Natural guardians. § 744.387, Fla. Stat. Settlement of claims. § 744.391, Fla. Stat. Actions by and against guardian or ward. § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.446, Fla....
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In Re Amend. to Florida Prob. Rules, 986 So. 2d 576 (Fla. 2008).

Published | Supreme Court of Florida | 33 Fla. L. Weekly Supp. 542, 2008 Fla. LEXIS 1242, 2008 WL 2686339

...Administrator ad litem. § 733.708, Fla. Stat. Compromise. § 744.3025, Fla. Stat. Claims of minors. *589 § 744.3085, Fla. Stat. Guardian advocates. § 744.387, Fla. Stat. Settlement of claims. § 744.391, Fla. Stat. Actions by and against guardian or ward. § 744.446, Fla....
...Stat. Duty to file annual guardianship report. § 744.3675, Fla. Stat. Annual guardianship plan. § 744.3678, Fla. Stat. Annual accounting. § 744.387, Fla. Stat. Settlement of claims. § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.446, Fla....
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Wixtrom v. Dep't of Child. & Families, 864 So. 2d 534 (Fla. 5th DCA 2004).

Published | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 161

interest and must be independent and impartial. Section 744.446, F.S. (2003). Decisions will have to be made
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In Re: Amendments to the Florida Prob. Rules - 2019 Fast-Track Report (Fla. 2020).

Published | Supreme Court of Florida

...Administrator ad litem. § 733.708, Fla. Stat. Compromise. § 744.3025, Fla. Stat. Claims of minors. § 744.3085, Fla. Stat. Guardian advocates. § 744.387, Fla. Stat. Settlement of claims. § 744.391, Fla. Stat. Actions by and against guardian or ward. § 744.446, Fla....
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A.J. v. State, Dep't of Health & Rehabilitative Servs., 630 So. 2d 1187 (Fla. Dist. Ct. App. 1994).

Published | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 81

husband for physical therapy was improper under section 744.446(2)(d), Florida Statutes (1991),1 which constitutes
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In Re: Amendments to the Florida Prob. Rules - 2020 Fast-Track Report (Fla. 2021).

Published | Supreme Court of Florida

including listing any activities designated in section 744.446(3), Florida Statutes; (7) the
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In re Amendments to the Florida Prob. Rules, 948 So. 2d 735 (Fla. 2007).

Published | Supreme Court of Florida | 32 Fla. L. Weekly Supp. 79, 2007 Fla. LEXIS 132, 2007 WL 268753

...Administrator ad litem. § 733.708, Fla. Stat. Compromise. -§ 744.301, Fla. Stat. Natural guardians. § 744,3025, Fla. Stat. Claims of minors. § 744.387, Fla. Stat. Settlement of claims. § 744.391, Fla. Stat. Actions by and against guardian or ward. § 744.446, Fla....
...Statutory References § 744.301, Fla. Stat. Natural guardians. § 744.3025, Fla. Stat. Claims of minors. § 744.387, Fla. Stat. Settlement of claims. § 744.391, Fla. Stat. Actions by and against guardian or ward. § 744.441, Fla. Stat. Powers of guardian upon court approval. § 744.446, Fla....
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In Re: Amendments to the Florida Prob. Rules - 2020 Fast-Track Report (Fla. 2020).

Published | Supreme Court of Florida

...The petition shall be verified by the petitioner and shall state: (1)-(5) [NO CHANGE] (6) the proposed guardian’s relationship to and any previous association with the minor, including listing any activities designated in section 744.446(3), Florida Statutes; (7) the reasons why the proposed guardian should be appointed; and (8) the nature and value of the property subject to the guardianship.; and (9) whether there are p...
...(d)-(f) [NO CHANGE] Committee Notes [NO CHANGE] - 13 - Rule History 1991-2014 [NO CHANGE] 2020 Revision: Subdivision (c)(6) amended to include reference to section 744.446, Florida Statutes, and subdivision (c)(9) amended to confirm to section 744.334, Florida Statutes, and the list of alternatives to guardianships. Statutory References § 69.031, Fla....
...Verified inventory. § 744.367, Fla. Stat. Duty to file annual guardianship report. § 744.3675, Fla. Stat. Annual guardianship plan. § 744.3678, Fla. Stat. Annual accounting. § 744.3679, Fla. Stat. Simplified accounting procedures in certain cases. § 744.446, Fla....
...The petition shall be verified by the petitioner and shall state: (1)-(6) [NO CHANGE] (7) the proposed guardian’s relationship to and any previous association with the alleged incapacitated person, including listing any activities designated in section 744.446(3), Florida Statutes; (8) the reasons why the proposed guardian should be appointed; (9) whether there are possible alternatives to guardianship known to the petitioner, including, but not limited to,...
...(b)-(c) [NO CHANGE] Committee Notes Rule History 1975-2016 [NO CHANGE] - 15 - 2020 Revision: Subdivision (a)(7) amended to include reference to section 744.446, Florida Statutes, and subdivision (a)(9) amended to conform to section 744.334, Florida Statutes, and the list of alternatives to guardianships. Statutory References § 744.2002, Fla....
...Petition for appointment of guardian or professional guardian; contents. § 744.3371(1), Fla. Stat. Notice of petition for appointment of guardian and hearing. § 744.341, Fla. Stat. Voluntary guardianship. § 744.2005, Fla. Stat. Order of appointment. § 744.446, Fla....