Florida Statute 744.361 - Full Text and Legal Analysis

The 2024 Florida Statutes (including 2025 Special Session C)

Title XLIII
DOMESTIC RELATIONS

Chapter 744
GUARDIANSHIP

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F.S. 744.361

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.

(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.

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Amendments to 744.361

Annotations, Discussions, Cases:

Cases Citing Statute 744.361

Total Results: 19

Kern v. Kern

360 So. 2d 482, 99 A.L.R. 3d 316

District Court of Appeal of Florida | Filed: Jul 12, 1978 | Docket: 1738470

Cited 37 times | Published

their adopted children during minority. [2] Section 744.361(1). It is the duty of the guardian of the person

In Re Guardianship of Sapp

868 So. 2d 687, 2004 WL 690568

District Court of Appeal of Florida | Filed: Apr 2, 2004 | Docket: 1510568

Cited 6 times | Published

ward that have been delegated to the guardian. § 744.361(1). Depending upon the extent of the ward's incapacity

Bergman v. Serns

443 So. 2d 130

District Court of Appeal of Florida | Filed: Dec 6, 1983 | Docket: 1746788

Cited 6 times | Published

including those relating to the ward's residence. Section 744.361, Florida Statutes (1981) provides that a guardian's

Romano v. Olshen

153 So. 3d 912, 2014 WL 940700

District Court of Appeal of Florida | Filed: Mar 12, 2014 | Docket: 60245368

Cited 4 times | Published

guardianship, all property to those so entitled. See § 744.361(6)(a)-(c), Fla. Stat. (2012). A guardian of the

Bardol v. Martin

763 So. 2d 1119, 1999 WL 1243870

District Court of Appeal of Florida | Filed: Dec 22, 1999 | Docket: 1278234

Cited 4 times | Published

exercise the powers of a plenary guardian." See § 744.361(1). Because the duty to support one's children

State v. Badalich

479 So. 2d 197, 10 Fla. L. Weekly 2576

District Court of Appeal of Florida | Filed: Nov 21, 1985 | Docket: 463649

Cited 4 times | Published

Stat. 744.301(1). The State also argues that Fla. Stat. 744.361(2) gives the mother guardianship of the person

McGilton v. Millman

868 So. 2d 1259, 2004 WL 574482

District Court of Appeal of Florida | Filed: Mar 24, 2004 | Docket: 451905

Cited 3 times | Published

occurring before the guardianship. We disagree. Section 744.361, Florida Statutes (1997), specifically includes

Leaird v. Leaird

540 So. 2d 243, 1989 WL 27916

District Court of Appeal of Florida | Filed: Mar 29, 1989 | Docket: 1689117

Cited 3 times | Published

college education. See Kern, 360 So.2d at 484; § 744.361(1), Fla. Stat. (1987). Therefore, although the

Connelly v. Connelly

409 So. 2d 175

District Court of Appeal of Florida | Filed: Jan 29, 1982 | Docket: 525644

Cited 3 times | Published

whom the custody of the child is awarded. Section 744.361, Florida Statutes (1979), provides in part:

Mills v. Phillips

407 So. 2d 302, 1 Educ. L. Rep. 1391

District Court of Appeal of Florida | Filed: Dec 14, 1981 | Docket: 467493

Cited 2 times | Published

whom the custody of the child is awarded. Section 744.361, Florida Statutes (1979), provides in part:

LADONNA HUDKINS vs MATTHEW L. HUDKINS, GUARDIAN OF THE PERSON AND THE PROPERTY OF THE WARD, KEITH L. HUDKINS

District Court of Appeal of Florida | Filed: Apr 28, 2023 | Docket: 68034638

Published

possession of pre-guardianship assets of a ward. Section 744.361(12) provides: The guardian, if

TERRI FOSTER v. GUARDIANSHIP OF CAYMAN FOSTER

District Court of Appeal of Florida | Filed: Jan 4, 2023 | Docket: 66698534

Published

father claimed that the guardian violated section 744.361(13)(b), Florida Statutes (2016), which requires

PATRICIA ASH v. IN RE: GUARDIANSHIP OF AARON ASH

District Court of Appeal of Florida | Filed: Dec 15, 2021 | Docket: 61618221

Published

granted by the court and as provided by law.” § 744.361(1) and (2), Fla. Stat. (2019). “A guardian may

In Re AMENDMENTS TO the FLORIDA PROBATE RULES

181 So. 3d 480, 40 Fla. L. Weekly Supp. 703, 2015 Fla. LEXIS 2810, 2015 WL 9264021

Supreme Court of Florida | Filed: Dec 17, 2015 | Docket: 3022132

Published

guardian is acting-'in a manner contrary-to section 744.361, Florida Statutes. See ch.2015-83

Hancock v. Share

67 So. 3d 1075, 2011 Fla. App. LEXIS 10651, 2011 WL 2650887

District Court of Appeal of Florida | Filed: Jul 8, 2011 | Docket: 60301926

Published

Specifically, the trial court concluded that section 744.361(6)(e) of the Florida Statutes (2009) required

Ago

Florida Attorney General Reports | Filed: Jul 2, 2004 | Docket: 3255987

Published

strengthening the supervisory powers of the court.4 Section 744.361(2), Florida Statutes, requires guardians to

O'Hare v. Hamric

868 So. 2d 687, 2004 Fla. App. LEXIS 4340

District Court of Appeal of Florida | Filed: Apr 2, 2004 | Docket: 64829028

Published

ward that have been delegated to the guardian. § 744.361(1). Depending upon the extent of the ward’s incapacity

Florida Bar

531 So. 2d 1261, 13 Fla. L. Weekly 601, 1988 Fla. LEXIS 1475, 1988 WL 53983

Supreme Court of Florida | Filed: Sep 29, 1988 | Docket: 64637451

Published

appointed guardian of a resident incompetent. F.S. 744.361(3) Duties and powers of guardian of the person

Florida Bar

537 So. 2d 500, 13 Fla. L. Weekly 601, 1988 Fla. LEXIS 1463, 1988 WL 143178

Supreme Court of Florida | Filed: Sep 29, 1988 | Docket: 64640022

Published

appointed guardian of a resident incompetent. F.S. 744.361(3) Duties and powers of guardian of the person