Are Parents Fiduciaries?

Abstract

Parents resemble trustees, conservators, and other fiduciaries; they exercise broad discretion while making choices for vulnerable people. Like other fiduciaries, parents can be tempted to neglect their duties or pursue self-interest at the expense of those they should protect. Based on these similarities, courts, legal academics, and philosophers have long argued that parents are (or should be) moral and legal fiduciaries.

Arguments for treating parents as fiduciaries face a challenge. Because parenting intersects with many aspects of a person’s life, a strict fiduciary duty of loyalty might be burdensome, regulating almost any parental decision. Parents could be required to lead much of their lives guided only by their child’s needs.

This article argues against treating parents as fiduciaries for four reasons. First, the scope of parental fiduciary duties cannot be narrowed enough to make them tolerable. Arguments limiting fiduciary duties to cases where parents exercise delegated powers or act within parenting roles fail. Most parental decisions involve dual powers or roles. Addressing these dual-role cases lead to principles that are unduly demanding, complex, arbitrary or otherwise morally unappealing.

Second, we could limit parental fiduciary duties by designing parental roles to benefit children. Since children need devoted, happy, well-rounded parents, the principle of designing parental roles to benefit children would produce rules that leave room for parents to flourish. However, this principle does not justify specific legal or moral fiduciary norms.

Third, we could redefine fiduciary duties so parents can balance their interests against children’s interests, making fiduciary duties less burdensome. However, expanding the definition of fiduciary threatens to encompass many duties within the fiduciary category, rendering the description almost meaningless. Furthermore, adopting this account is inconsistent with the child-centered moral norms that motivate most scholars to call parents fiduciaries.

Finally, we usually grant fiduciaries discretion in selecting how they advance their charge’s interests. However, we do not let them choose what ultimate goals to pursue. Unlike trustees or corporate directors, parents need to act on potentially controversial views about what makes for a good life. Regulating such decisions might be inappropriate for a liberal state, making traditional fiduciary approaches problematic.