What Happens when a Guardian Breaches their Fiduciary Duty?

Just like the personal representative of an estate, executor of a Will, or trustee of a living trust, the guardian of an incapacitated Florida adult has an underlying duty to perform in the best interests of the ward (person who is incapacitated). Guardians may be Florida residents over the age of 18 or anyone who is a direct descendant to the ward and also 18 (or older). Guardians have the power to look after the ward’s property and assets, but specific authority depends on many factors, including whether the ward is fully or partially incapacitated. 

There are a number of ways that guardianship can be terminated. A common way is that the ward being looked after passes away or regains capacity. Other times, the guardian is not performing the duties in accordance with Florida law. Florida Statute 744.474 outlines 21 reasons why a guardian might be removed from his or her duties. The reasons are:

  1. Fraudulently obtaining the guardianship appointment.
  2. Failure to discharge the guardianship’s duties. 
  3. Abuse of authority. 
  4. Incapacity or illness that renders him or her incapable of carrying out the duties. 
  5. Not complying with a court order. 
  6. Failure to produce and exhibit the ward’s assets or to return “schedules of property sold or accounts of sales of property.”
  7. The “wasting, embezzlement, or other mismanagement” of the ward’s assets.
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  9. The guardian being convicted of a felony. 
  10. Appointment of a receiver, bankruptcy trustee, or liquidator “for any corporate guardian.” 
  11. A conflict of interest between the guardian and the ward. 
  12. Having been convicted of, or entered a plea of guilty or nolo contendere (no contest) to, specific crimes. 
  13. A material failure to comply with the guardianship report. 
  14. Not filing the initial and annual guardianship reports in a timely manner. 
  15. Not fulfilling the guardianship educational requirements. 
  16. Improper management of the ward’s assets. 
  17. A material change in the financial circumstances of the ward so that the guardian is either not qualified or not required to look after the assets. 
  18. The guardian’s becoming a disqualified person in accordance with Florida Statute 744.309. 
  19. An otherwise qualified guardian who is related to the ward can show that the current guardian is not a family member and that a change in guardianship is in the ward’s best interests. Also included here are those who can show that he or she did not receive notice of the petition for adjudication when the notice was otherwise required. 
  20. A showing that the removal of the guardianship is in the ward’s best interest. Current guardians who are related to the ward by blood or marriage have a rebuttable presumption that they are already acting in the ward’s best interests. 
  21. The guardian’s not submitting guardianship records during the required audit. 
What is the Procedure for Removing a Guardian?

Florida law states that proceedings for removal of a guardian can be initiated by:

  • A court with jurisdiction
  • A “surety or other interested person”
  • The ward

The plaintiff must serve the petition for removal of a guardian to all guardians (including the one in danger of being removed), interested persons, next of kin, and the ward. The petition must lay out the reason or reasons the plaintiff is seeking to have the guardian removed. 

Luis E. Barreto & Associates, P.A. is well-equipped to handle a wide variety of probate litigation, including removal of a guardian. It’s hard to watch your loved one get taken advantage of by his or her guardian, but we can help you put a stop to it. Get in touch by calling 305-358-1771 and schedule your free consultation.

Luis E. Barreto