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Powers of a Florida Guardian with Court Approval

  1. Generally

Chapter 744 of the Florida Statutes governs guardianships. Florida Statute §744.361 through §744.462, sets out the powers and duties of guardians. However, in typically confusing statutory fashion, not necessarily every power and duty of a guardian is contained within these statutory sections. For example, many of the things that a guardian of the person can do are in Florida Statute §744.3215. I would suggest that before a guardian take any action that affects the ward, that an attorney be consulted to determine whether court approval is needed.

Florida Statute §744.3215(3) lists those rights that may be removed from the ward and delegated to the guardian, which means that only the guardian can exercise those rights on the ward's behalf. The exercise of a delegated right may, or may not, require court permission. Some delegated rights apply only to guardians of the property and others apply only to guardians of the person.

  1. Actions Requiring Court Approval for Guardian of the Person

Under Florida Statute §744.3215(4), the guardian must petition the court for extraordinary authority for certain medical procedures, to commit a ward to certain treatment facilities, to initiate a divorce, to terminate the ward’s parental rights, or to consent to sterilization or an abortion. This section reads as follows:

(4) Without first obtaining specific authority from the court, as described in s. 744.3725, [The statute cited pertains to a petition for extraordinary authority] a guardian may not:

(a) Commit the ward to a facility, institution, or licensed service provider without formal placement proceeding, pursuant to chapter 393[Developmental Disabilities], chapter 394 [Mental Health], or chapter 397 [Substance Abuse].

(b) Consent on behalf of the ward to the performance on the ward of any experimental biomedical or behavioral procedure or to the participation by the ward in any biomedical or behavioral experiment. The court may permit such performance or participation only if:

  1. It is of direct benefit to, and is intended to preserve the life of or prevent serious impairment to the mental or physical health of the ward; or

  2. It is intended to assist the ward to develop or regain his or her abilities.

(c) Initiate a petition for dissolution of marriage for the ward.

(d) Consent on behalf of the ward to termination of the ward’s parental rights.

(e) Consent on behalf of the ward to the performance of a sterilization or abortion procedure on the ward.

  1. Guardian of the Property

Florida Statute §744.441 describes what a guardian of the property can do only with court approval. Note that these restrictions apply to the guardian of the property as they all involve property interests and rights of one sort or another. This statute lists twenty-two (22) separate items and categories of items that require court permission.

You may not be able to remember all twenty-two (22) of the items that require court approval, but they all fall into several broad themes that you can remember. I explain these broad themes below with reference to the particular subsections of sec. 744.441 that are involved.

Contracts:

You cannot perform, compromise, or refuse contracts that the ward entered into without first obtaining court permission. Court’s cannot impair valid contracts so the refusal to perform a contract (i.e., breaching the contract) may get the ward sued. If the ward was arguably incompetent at the time of the contract, the contract may be invalid and the court may allow it to be refused. However, the other party may disagree and may sue. You also cannot enter into new contracts on behalf of the ward without court permission. See, subsections 1 and 21.

Estates (Whether the Ward’s or Others), Estate Planning, and Funeral Planning:

You cannot deal in the estates of others without the court’s permission. See, subsection 2. You cannot plan the ward’s estate without court permission. If the ward has an existing estate plan, the guardian cannot alter it or change the beneficiaries. However, you may be able to engage in some beneficial tax planning if the estate is taxable. See, subsections 2, 16, 17, 18, 19, 20

The probate laws allow up to $6,000.00 in funeral expenses to be treated as a priority claim against the estate. Not coincidentally this is also the maximum amount the guardian can spend to pre-plan a funeral with court permission. Pre-payment of funeral expenses is useful in qualifying for Medicaid because it is an allowable expense. Therefore, if you are the guardian of an elderly ward do not hesitate to seek court permission for pre-need funeral planning. See, subsection 16

Real Estate and Interests in Real Estate:

Lawyers will sometimes describe rights in real property as being like a bundle of sticks. You can have all of the sticks (fee simple) or you can give some of your sticks away. For example, you can give someone else the right to occupy and use your property (a lease); you can give someone the rights to explore for and to mine minerals (mineral rights); or you can give a lien on the property (a mortgage). You cannot buy, sell, subdivide, develop, or give up rights in the ward's real property without court permission. In fact, you cannot even make ordinary repairs to real property without the court’s permission. See, subsections 3, 4, 5, 6, 7, 12, and 14.

When dealing with real property, it is best to ask for permission. No one has ever gotten in trouble for asking permission when it was not necessary. In fact, this is a good rule to follow any time you have a doubt as to whether permission is required for a specific act.

Financial Instruments and Interests (Stocks, Bonds, Insurance, Loans, Debts, Obligations, and Businesses):

A guardian cannot pay monies because of securities or borrow money without court permission. The guardian also cannot compromise debts of the ward or amounts owed to the ward without court permission. A guardian cannot continue the business of a ward, whether it is incorporated or unincorporated, without court permission. It may be necessary to wind down an operating business in an orderly fashion to keep the ward from being sued. No option of the ward’s under a life insurance policy can be exercised without court permission. See, 8, 9, 10, 12, 13, and 15

Subsection 12 requires permission to sell the ward’s personal property as well as real property.

Lawsuits:

A lawsuit cannot be prosecuted or defended for the protection of the estate or of the guardian without court permission. Sometimes a guardian may be sued or his or her decisions challenged by disgruntled interested parties. In such cases, court permission should be sought before actively defending the suit. See, subsection 11.

As of 2006, Florida Statute §736.0207 has provided an exception to the general rule that the validity of a revocable trust may not be contested until it becomes irrevocable (i.e., generally that mean when the settlor of the trust dies). The guardian of the property of an incapacitated settlor may now challenge the validity of a trust if it is in the ward’s best interest. This was probably done to allow the guardian to challenge a trust that is the consequence of undue influence. It is not unusual for unscrupulous caretakers to arrange trusts that benefit themselves through undue influence or by taking advantage of the ward’s incapacity.

  1. Delegation of the Guardian's Authority

With the Court’s permission, a guardian can appoint a surrogate guardian to act for the guardian when the guardian is unavailable. See, Florida Statute §744.442 The surrogate must be a professional and the guardian remains liable for the acts of the surrogate. This provision can be handy if a guardian wishes to take a vacation, or otherwise needs to be absent, and is concerned that issues that require a guardian may arise while the guardian is absent.

  1. Change of Ward’s Residence

The guardian of the person cannot change the ward’s residence to another state or to another county, unless the county is adjacent to the ward’s current county of residence, without getting court approval before the move.

A ward can be moved to an adjacent county without first getting the permission of the court. However, the court must receive “immediate" notification, which is defined as within 15 days of the move. The compelling reason for the move and the anticipated length of the move must be stated in the notification.

Conclusion

There are many things that require the court's permission before the guardian can take action. This is true even where a specific right or power of the ward has already been delegated to a guardian. When in doubt consult with your attorney and if there is still doubt, petiton the court for permission. No one ever got in trouble for asking permission to act.

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