What Is a Fiduciary in Florida?

A fiduciary is a person or institution that holds a position of trust and confidence with respect to another person's property, finances, or well-being. Under Florida law, a fiduciary is legally obligated to act in the best interests of the person they serve—not their own. This duty of loyalty and care is among the highest standards of conduct recognized in the law. Fiduciaries are found throughout estate planning, probate, and trust administration, and they play a central role in ensuring that a person's wishes are carried out and their assets are properly managed.

At the Law Offices of Albert Goodwin, PA, we represent both fiduciaries and the beneficiaries they serve in matters involving fiduciary duties, administration, and disputes. Whether you have been appointed as a fiduciary and need guidance on your obligations, or you are a beneficiary who believes a fiduciary is not fulfilling their duties, our attorneys can help.

Types of Fiduciaries in Florida

Florida law recognizes several types of fiduciaries, each with specific duties and responsibilities defined by statute. The most common fiduciaries in the estate planning and probate context include trustees, personal representatives (executors), guardians, and agents under a power of attorney.

Trustee

A trustee is the person or institution appointed to manage and administer a trust for the benefit of the trust's beneficiaries. The trustee holds legal title to the trust assets and is responsible for investing those assets, making distributions according to the trust instrument, keeping accurate records, and providing accountings to the beneficiaries. The duties of a trustee in Florida are governed primarily by the Florida Trust Code, Chapter 736 of the Florida Statutes.

A trustee may be an individual (such as a family member or friend), a professional fiduciary, or a corporate trustee (such as a bank or trust company). Regardless of who serves, the trustee is held to the same fiduciary standards and can be held personally liable for any breach of those duties.

Personal Representative (Executor)

A personal representative is the fiduciary appointed by the probate court to administer a decedent's estate. In Florida, the term "personal representative" is used instead of "executor" or "administrator," although these terms are often used interchangeably in everyday language. The personal representative's duties include identifying and collecting estate assets, paying the decedent's debts and taxes, and distributing the remaining assets to the beneficiaries as directed by the will or, if there is no will, according to Florida's intestacy statutes.

The duties of a personal representative are governed by Chapter 733 of the Florida Statutes. The personal representative must act in the best interests of the estate and its beneficiaries and is subject to court oversight throughout the probate process.

Guardian

A guardian is a fiduciary appointed by a Florida court to manage the personal affairs, property, or both, of a person who has been determined to be incapacitated. Guardianship proceedings in Florida are governed by Chapter 744 of the Florida Statutes. A guardian of the person makes decisions about the ward's living arrangements, healthcare, and daily needs. A guardian of the property (also called a guardian of the estate) manages the ward's finances and assets. In some cases, the same person serves in both capacities.

Guardians are subject to extensive court oversight, including the requirement to file annual reports and accountings with the court. Because guardianship involves such significant control over a vulnerable person's life and property, the fiduciary duties of a guardian are strictly enforced, and violations can result in removal, surcharge, and even criminal prosecution.

Agent Under a Power of Attorney

An agent (also called an attorney-in-fact) is a person designated under a power of attorney to act on behalf of the principal in financial, legal, or other matters. The agent's authority is defined by the power of attorney document and by Chapter 709 of the Florida Statutes (the Florida Power of Attorney Act). The agent is a fiduciary who must act in the principal's best interest, within the scope of the authority granted, and must keep the principal's property separate from their own.

Power of attorney abuse is a serious problem in Florida, particularly when the principal is elderly or incapacitated. An agent who misuses their authority—for example, by making gifts to themselves, transferring the principal's property for their own benefit, or failing to maintain proper records—can be held liable for breach of fiduciary duty and may face civil and criminal consequences.

Core Fiduciary Duties Under Florida Law

Regardless of the type of fiduciary, Florida law imposes several fundamental duties that every fiduciary must uphold. These duties form the foundation of the fiduciary relationship and serve to protect the interests of the people the fiduciary serves.

Duty of Loyalty

The duty of loyalty is the most fundamental fiduciary obligation. It requires the fiduciary to act solely in the best interests of the beneficiary, ward, or principal—not in their own self-interest. A fiduciary must avoid conflicts of interest and must not engage in self-dealing (transactions where the fiduciary personally benefits at the expense of the person they serve). Under the Florida Trust Code, F.S. § 736.0802 provides that a trustee must administer the trust solely in the interests of the beneficiaries.

Duty of Care and Prudent Administration

A fiduciary must act with the care, skill, and diligence that a reasonably prudent person would exercise under similar circumstances. For trustees, this standard is codified in F.S. § 736.0804, which requires a trustee to administer the trust as a prudent person would, considering the purposes, terms, distributional requirements, and other circumstances of the trust. For personal representatives, F.S. § 733.602 imposes a similar standard of ordinary care and diligence.

The duty of care also encompasses the duty to invest prudently. Under the Florida Uniform Prudent Investor Act (F.S. § 518.11), a trustee or other fiduciary who has investment responsibilities must diversify investments, act in accordance with a reasonable investment strategy, and consider the purposes, size, and other relevant characteristics of the portfolio.

Duty to Keep Beneficiaries Informed

Fiduciaries must keep the people they serve reasonably informed about the administration of the estate, trust, or guardianship. For trustees, F.S. § 736.0813 requires providing qualified beneficiaries with information necessary to protect their interests, including trust accountings and copies of the trust instrument upon request. For personal representatives, the probate code requires notice to beneficiaries and the filing of accountings with the court.

Duty of Impartiality

When a fiduciary serves multiple beneficiaries with different interests—for example, a current income beneficiary and a remainder beneficiary—the fiduciary must act impartially and balance the interests of all parties. Under F.S. § 736.0803, a trustee must act impartially in investing, managing, and distributing trust property, giving due regard to the beneficiaries' respective interests.

Duty to Account

A fiduciary must maintain accurate and complete records of all transactions involving the property they manage. This includes a record of all income received, expenses paid, distributions made, and assets held. The fiduciary must be prepared to provide a full accounting upon request or as required by law, and the accounting must be sufficiently detailed to allow the beneficiaries and the court to evaluate the fiduciary's performance.

Breach of Fiduciary Duty in Florida

When a fiduciary fails to uphold their duties, they can be held personally liable for any losses that result. A breach of fiduciary duty can take many forms, including mismanagement of assets, failure to diversify investments, self-dealing, failure to make required distributions, failure to provide accountings, excessive self-compensation, and failure to protect property from waste or loss.

Florida courts take breach of fiduciary duty seriously. Available remedies include surcharge (requiring the fiduciary to personally repay losses caused by the breach), disgorgement of profits the fiduciary improperly obtained, removal of the fiduciary from their position, and an award of attorney's fees to the prevailing party. In cases involving intentional misconduct, the fiduciary may also face punitive damages or criminal charges.

Beneficiaries and other interested persons have standing to petition the court for relief when they believe a fiduciary has breached their duties. It is important to act promptly, as delays can result in further losses and may affect your ability to recover damages. For more on removal of fiduciaries, see our pages on executor removal and trustee removal.

Contact a Florida Fiduciary Duty Attorney

Whether you are a fiduciary who needs guidance on fulfilling your obligations or a beneficiary who believes a fiduciary has breached their duties, the Law Offices of Albert Goodwin, PA can help. We handle fiduciary duty matters throughout Florida, including trust litigation, probate disputes, and guardianship proceedings. Contact us at our office at 121 Alhambra Plz #1000, Coral Gables, FL 33134. Call 786-522-1411 or email [email protected] to schedule a consultation.