Florida Statutes

Fla. Stat. § 744.446 (2025)

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

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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.

Notes of Decisions

Cited in 23 cases (2 in the last 5 years), 1989–2021 · leading case: Glenda Martinez Smith v. J. Alan Smith, 224 So. 3d 740 (Fla. 2017).

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Glenda Martinez Smith v. J. Alan Smith, 224 So. 3d 740 (Fla. 2017). · cites it 3× “) 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.”

Amendments to the Florida Prob. Rules, 848 So. 2d 1069 (Fla. 2003). · cites it 6× “§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty.”

Sun Bank & Trust Co. v. Jones, 645 So. 2d 1008 (Fla. 5th DCA 1994). · cites it 5× “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.”

Kirton v. Fields, 997 So. 2d 349 (Fla. 2008). “09(3) (contract for artistic or creative services or professional sport contract); § 744.446 (parental conflict of interests with minor child), Florida Statutes (2004)).”

In Re Amendments to the Florida Prob. Rules, 584 So. 2d 964 (Fla. 1991). · cites it 3× “§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities; court approval.”

In Re Guardianship of JDS, 864 So. 2d 534 (Fla. 5th DCA 2004). · cites it 3× “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.”

Swan v. Trost, 100 So. 3d 1205 (Fla. 2d DCA 2012). · cites it 4× “See § 744.446, Fla. Stat. (2009). 2 Count I *1208 of the petition asked the trial court to appoint a monitor pursuant to section 744.”

TMRMC v. Petersen, 920 So. 2d 75 (Fla. 1st DCA 2006). · cites it 2× “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).”

Goeke v. Goeke, 613 So. 2d 1345 (Fla. 2d DCA 1993). · cites it 2× “See § 744.446, Fla. Stat. (1991). I. THE GUARDIANSHIP AND THE IRA William Goeke is seventy-one years old.”

In Re Amend. to Florida Prob. Rules, 986 So. 2d 576 (Fla. 2008). · cites it 4× “§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty.”

Poteat v. Guardianship of Poteat, 771 So. 2d 569 (Fla. 4th DCA 2000). “" 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…”

A.J. v. State, Dep't of Health & Rehabilitative Servs., 630 So. 2d 1187 (Fla. 2d DCA 1994). · cites it 3× “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…”

Show all 23 citing cases →

— 744.446(1) — 1 case

Glatthar v. Hoequist, 600 So. 2d 1205 (Fla. 5th DCA 1992).

— 744.446(2) — 2 cases

Glenda Martinez Smith v. J. Alan Smith, 224 So. 3d 740 (Fla. 2017). “) 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.”

— 744.446(2)(d) — 2 cases

A.J. v. State, Dep't of Health & Rehabilitative Servs., 630 So. 2d 1187 (Fla. 2d DCA 1994). “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…”

Aj v. State, Dhrs, 630 So. 2d 1187 (Fla. 2d DCA 1994).

— 744.446(3) — 3 cases

Sun Bank & Trust Co. v. Jones, 645 So. 2d 1008 (Fla. 5th DCA 1994). “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.”

In Re: Amendments to the Florida Prob. Rules - 2020 Fast-Track Report (Fla. 2020).

In Re: Amendments to the Florida Prob. Rules - 2020 Fast-Track Report (Fla. 2021).

— 744.446(4) — 1 case

Swan v. Trost, 100 So. 3d 1205 (Fla. 2d DCA 2012). “See § 744.446, Fla. Stat. (2009). 2 Count I *1208 of the petition asked the trial court to appoint a monitor pursuant to section 744.”

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