Florida Probate, Trust & Guardianship Litigation

Can A Florida Guardian Have A Conflict Of Interest With The Ward?

No, a guardian is not permitted to have a conflict of interest with the ward.

In the April 2020 case of Waldon v. In Re Guardianship of Charles Waldon, the Third District Court of Appeals affirmed a Florida probate court’s order appointing a guardian with an alleged conflict of interest, finding that none existed.

The Facts of Waldon

The ward, Charles Waldon, had five daughters: Carla Alger (“Alger”), Elena George (“George”), Sandra Dunn (“Dunn”), Inez Howard (“Howard”), and Glenda Waldon (“Waldon”).

The ward and his wife were both declared incapacitated and in need of limited legal guardians in 2015.  George was appointed as the ward’s guardian.  Alger was appointed as guardian for the mother.  One day, Dunn was allowed to take the ward out to lunch.  Instead of taking him to lunch, Dunn removed the ward from Florida, taking him to Georgia.

Then, the following events occurred:

  • September 2015: The ward reported alleged physical abuse and financial exploitation by Alger, her husband, and a caretaker (“Graham”)
  • October 2015: George traveled to Georgia in an attempt to get the ward back, but the ward refused to return to Florida.
  • November 2015: The ward filed a lawsuit in Georgia against Alger, her husband, and Graham, and obtained an injunction against them.
  • January 2016: George obtained an order in Florida to show cause why Howard, Waldon, and Dunn should not return the ward to her in Florida without delay.

The ward was not returned to Florida.  George resigned as guardian in 2017.  Alger (who was already serving as the ward’s wife’s guardian) petition for appointment as guardian of the ward.

Hearings were held.  In Georgia, the ward testified that he lived alone, and accused Alger and her husband of taking everything he owned.  At hearings on Alger’s guardianship petition, Alger testified about her qualifications as guardian, and supporting witnesses testified as to her honest intentions.  Howard also sought appointment as guardian, and Dunn and Waldon testified on Howard’s behalf.  Howard testified that Alger was currently foreclosing on a mortgage on Howard’s property, and that the ward and his wife were also defendants in the action.

Alger was appointed as guardian.  The court found that Alger was better qualified than Howard, and that her appointment was in the best interests of the ward.  Howard was found unsuitable to serve as guardian partly because of her facilitation of the ward’s transportation to Georgia without notice to the prior guardian George, and her failure to return the ward, contrary to the court’s show cause order.  Howard also was found to have a conflict of interest because she owed money to the ward.

The ward appealed the Florida probate court’s order appointed his daughter, Carla Alger (“Alger”) as limited guardian of his person and property.   The ward alleged that the probate court abused its discretion by appointing Alger as his guardian because of the conflicts of interest between Alger and the ward.  Specifically, the ward argued that the existence of a Georgia restraining order, as well as Alger’s foreclosure suit on the Howard’s mortgage, where the ward was named co-defendant, created conflicts of interest that precluded her appointment.

Can A Guardian Have A Conflict Of Interest With The Ward?

No.  A court may not appoint a guardian in any circumstance in which a conflict of interest has arisen. § 744.446(1)-(2), Fla. Stat.  Here, the appellate court explained a “conflict of interest” as follows:

A conflict of interest is “[a] real or seeming incompatibility between one’s private interests and one’s public or fiduciary duties.” Conflict of Interest, Black’s Law Dictionary (9th ed. 2009). If a transaction involves a conflict of interest between a guardian and ward, the transaction is prohibited, regardless of the fairness to the ward or whether the transaction is in the best interests of the ward.

Is A Pecuniary Interest Adverse To The Ward A Conflict Of Interest?

Generally, yes, a guardian has a conflict if they have acquired an ownership, possessory, security, or other pecuniary interest adverse to the ward pursuant to section 744.446 (1)(b).  The court acknowledged that under these facts, the interest was not a sufficient conflict to bar service as guardian, stating:

Here, at the time of appointment, the guardian did hold a senior mortgage in property that she had sued to foreclose on and in which the ward also owned a junior interest. However, under these facts, where no pecuniary transaction was at issue, the ward was sued only as a necessary party, and there was no indication that the guardian’s interest would prevent her from giving her father the same care she had given to her mother, this did not create a sufficient conflict.

The court went on to note that the prohibition on holding an interest adverse to the ward is prefaced under Florida law:

Further, section 744.446(2) clearly prefaces its prohibition with the clause “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.”

The alleged conflict raised here predated the appointment and was later disclosed. Alternatively, the lower court approved of it, by declining to find it preclusive of appointment.

Does A Restraining Order Create A Conflict Of Interest?

No.  In deeming this a non-issue, the court stated:

Although this order existed at the time of the hearings, it was subsequently nullified upon the dismissal of the suit in Georgia, which took place before the lower court’s order was rendered. As of the time the order on appeal was rendered, therefore, no conflict of interest could have existed by virtue of a nonexistent order. Even if evidence of the Georgia order should have carried some weight below, while it existed, it would have been evidence of the ward’s perceptions of the guardian’s dangerousness, likelihood of suffering harm if placed in her care, and preference not to live with her, without the weight of a domesticated order. Because other testimony, medical and otherwise, rebutted all three things and was found more credible by the lower court, it did not err in failing to find that the prior order created a conflict, or in her determination of the ward’s welfare.


This Florida guardianship case is a key reminder of two points in conflict of interest situations.

First, each case is decided on its own particular facts.  Since guardianships are so individualized to the ward’s needs, the particulars of each situation really do matter.  At first glance, it might seem like a given that a person with a restraining order against them who has a lawsuit against the ward has a conflict of interest and cannot serve as their Florida guardian – not so in this case.

Second, the standard of review for a Florida probate court’s appointment of a guardian is abuse of discretion.  Therefore, if the findings are supported by the record, and a reasonable judge could find what the probate court found, the findings will not be overturned by the appellate court.

Oral Argument at 5th District Court of Appeals

Florida Probate Attorney Jeffrey Skatoff Arguing in Court

Jeffrey Skatoff

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