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. This article argues against treating parents as fiduciaries for three 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. Efforts to address these dual-role cases produce principles that are unduly demanding, complex, arbitrary, and 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.
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Notes
Parents also resemble fiduciaries who offer guidance to those who lack expertise, such as doctors, lawyers, and some financial advisors.
Fiduciaries can sometimes act for reasons other than promoting their charge’s welfare, depending on the context. For example, seeking authorization from the principal to deviate from this goal is usually allowed. In some contexts, fiduciaries may pursue self-interest if no harm comes to the principal. See, infra notes 36 and 37.
The definition of fiduciary is often debated. On some accounts, duties of reasonable effort and skill are included within the definition, while in others, fiduciary duties focus only on the duty of loyalty. See, e.g., Julian Velasco, ‘How Many Fiduciary Duties are there in Corporate Law?’, S. Cal. L. Rev. (83) (2009–2010): pp. 1231–1318; Lionel Smith, ‘Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another’, L. Quart. Rev. (130) (2014): pp. 608–634.
Some courts refer to parents as fiduciaries, either generally or in specific circumstances (such as when they manage their children’s assets). See, e.g., Fyffe v. Fyffe, 350 Ill. 620, 644 (1932); Ohio Cas. Ins. Co. v. Mallison, 230 Or. 406, 410 (1960); S.V. v. R.V. 933 S.W.2d 1, 8 (1996).
Elizabeth Scott & Robert Scott, ‘Parents as Fiduciaries’, Va. L. Rev. (81) (1995): pp. 2401–2476; Lionel Smith, ‘Parenthood Is a Fiduciary Relationship’, U. Toronto L. J. (70) (2020): pp. 395–452.
Harry Brighouse & Adam Swift, Family Values: The Ethics of Parent-Child Relationships 121 (Princeton: Princeton University Press, 2014), p 121; James Dwyer, ‘Deflating Parental Rights’, Law and Phil. (40) (2021): pp. 387–418, 394; Anca Gheaus, ‘The Best Available Parent’, Ethics (131)(2021): pp. 431–459; Sarah Hannan & Richard Vernon, ‘Parental Rights: A Role-Based Approach’, Theory & Research in Education (6) (2008): pp. 173–189. Many philosophers reject the view that parents are fiduciaries. See, e.g., Matthew Clayton, Justice and Legitimacy in Upbringing (Oxford University Press; Oxford, 2006); Colin MacLeod, ‘Parental Competency and the Right to Parent’ in Permissible Progeny?: The Morality of Procreation and Parenting (Sarah Hannan, Samantha Brennan, and Richard Vernon, eds. Oxford: Oxford University Press, 2015), pp. 227–245.
Some people might object that the concept of a fiduciary is necessarily a legal idea. However, many aspects of fiduciary obligations have moral counterparts, including duties of loyalty. See Andrew Gold, ‘The Reasonably Loyal Person’ in Private Law and Practical Reason: Essays on John Gardner’s Private Law Theory (Oxford: Oxford University Press, forthcoming).
One difference between parenting and many fiduciary relationships is the role of procedural compliance norms. For example, rules making spouses fiduciaries to each other can often be satisfied if they disclose information about assets and seek separate legal representation when negotiating. See Rutter, California Practice Guide-Family Law §9:240 (Thompson Reuters, 2022). Similarly, corporate directors can satisfy their fiduciary duties by obtaining approval from disinterested board members or shareholders when making choices that could harm the corporation. See James Cox & Thomas Hazen, Treatise on the Law of Corporations § 10:12 (St. Paul, MN, Thompson Reuters, 3d edition, 2011).
Bayer v. Beran, 49 N.Y.S.2d 2, 5 (1944 N.Y.). The reason a strict duty of loyalty might be problematic for parents is not that fiduciaries cannot balance conflicting interests. Trustees who manage a trust for multiple beneficiaries must regularly balance the interests of those beneficiaries when they conflict. Rather, the problem is that trustees usually cannot count their interests among those in this balance.
Legal rules rarely interfere with parental decisions on where to live, except when divorced parents disagree about whether a custodial parent can relocate. Although legal rules vary significantly by state, some of the most restrictive might be interpreted as requiring custodial parents to live in the location that is deemed best for the child. Most states give some weight to parental interests. See e.g., Scott Altman, ‘Should Child Custody Rules be Fair’, U. Louisville J. Fam. L. 325 (35) (1996–1997): pp. 325–354; Linda Elrod, ‘National and International Momentum Builds for More Child Focus in Relocation Disputes’, Fam. L.Q. (44) (2010–2011): pp. 341–374.
See, e.g., Tamar Frankel, Fiduciary Law (Oxford: Oxford University Press, 2011); Larry Ribstein, ‘Fencing Fiduciary Duties’, B.U. L. Rev. (91) (2011): pp. 899–920; See Stephen Smith, ‘The Deed, Not the Motive: Fiduciary Law without Loyalty’, pp. 213–238 in, Contract, Status, and Fiduciary Law (Oxford: Oxford University Press, 2016, Paul Miller & Andrew Gold, Eds.).
See Gheaus, supra; Dwyer, supra.
Gheaus, supra.
Id. Some scholars have also advocated parental licensing schemes. See Hugh LaFollette, ‘Licensing Parents Revisited’, J. Applied Phil. (27) (2010): pp. 327–343. These schemes could be justified on grounds other than a parental fiduciary duty.
Karen Boxx, ‘Of Punctilios and Paybacks: The Duty of Loyalty under the Uniform Trust Code’, Mo. L.
Rev. (67) (2002): pp. 279–308.
See sources cited supra note 8.
Scott and Scott suggest that corporate directors are a more suitable analogy to parents because both require broad discretion and engage in a wide range of activities. Scott & Scott, supra at 2431. The analogy is not obvious. Unlike parents, corporate directors serve shareholders who can observe many of their actions and take steps (through voting and selling stock) to protect themselves. As well, individual corporate directors with conflicts of interest can be constrained and monitored by un-conflicted directors. The analogy to conservators and trustees, who make choices for incapacitated people, might be more apt.
For a range of views, see Harry Brighouse & Adam Swift, ‘Parents’ Rights and the Value of the Family’, Ethics (117) (2006): pp. 80–108, 104; Colin MacLeod, ‘Conceptions of Parental Autonomy, Politics & Society’, (25) (1997): pp. 117–140, 121; Sarah Hannan and Richard Vernon, ‘Parental Rights: A Role Based Approach’, Theory & Research in Ed. (6) (2008): pp. 173–189, 185; Scott Altman, ‘Parental Control Rights’, in Philosophical Foundations of Children’s and Family Law, pp. 209–226 in (Oxford: Oxford University Press, Lucinda Fergusun & Elizabeth Brake, Eds., 2018).
Fiduciaries typically do not make controversial moral judgments about appropriate goals for the person whose interests they serve. One notable exception is that guardians making medical decisions must sometimes make controversial moral choices, including whether certain ways of being kept alive are worse than death. When possible, such guardians are supposed to make decisions based on what the patient would have wanted, rather than on the guardian’s values. However this is not always possible. See Generally, Allen Buchanan & Dan Brock, Deciding for Others: The Ethics of Surrogate Decision Making (Cambridge: Cambridge University Press, 1990).
For example, a trustee managing funds for a child cannot donate most of the money to charity based on the trustee's belief that wealth destroys the moral fiber of those who hold it. The trustee's goal—to maximize the risk-adjusted value of available funds—is set either by the person who established the trust or by statutory rules about the purpose of financial trusts. See generally John Langbein, ‘The Uniform Prudent Investor Act and the Future of Trust Investing’, Iowa L. Rev. (81) (1996): pp. 641–669.
For example, most trustees cannot divest from companies that produce fossil fuels based only on the trustee's environmental commitments unless the trustee gets authorization or the divestment will be financially advantageous. Max Schanzenbach & Robert Sitkoff, ‘Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee’, Stan. L. Rev. (72) (2020): pp. 381–454. The same pattern arises with corporate directors. Recent debates have suggested that directors should aim not only at maximizing profits but also at social goals. However, corporate social responsibility advocates think directors should pursue the moral values of their shareholders, often after a shareholder vote, rather than the moral goals of the director. See, e.g., Einer Elhague, ‘Sacrificing Corporate Profits in the Public Interest’, NYU L. Rev. (80) (2005): pp. 733–869; Oliver Hart & Luigi Zingales, ‘Companies Should Maximize Shareholder Welfare Not Market Value’, J. Law, Finance & Account. (2) (2017): pp. 247–274. Of course, fiduciary duties do not always aim at maximizing wealth. Directors of non-profits and public benefit corporations aim at other goals. However, those goals are set by corporate charters and public regulators, not by the moral compass of the directors. See Thomas Hazen & Lisa Hazen, ‘Punctilios and Nonprofit Corporate Governance – A Comprehensive Look at Nonprofit Directors' Fiduciary Duties’, U. Penn. J. Bus. L. (14) (2012): pp. 347–416, 386–392.
Scott and Scott argue for deference to parents based on a parental judgment rule, which they analogize to the business judgment rule applied to corporate directors. Scott & Scott at 2438. We should defer whenever reasonable parents might disagree about what choices promote a child's interests. They define reasonable parents as those who do not violate a social consensus reflected in legislation. Id. Smith also refers to objective limitations on parental discretion as reflected in statutes. Smith, ‘Parenthood as a Fiduciary Duty’, supra, at 436.
Dwyer, ‘Deflating Parental Rights’ at 395. See also Smith, ‘Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another’, supra at 613 (fiduciary duties involve a partial transfer of autonomy. They arise not because one’s acts affect another person, but because one acts on that person’s behalf. Thus, one must aim to act in that person’s interests.)
This description might be thought too quick. Parents’ financial resources might be thought to belong to the family because parents have an obligation to support their children. I do not think this undermines the main point in text. Parents have power to decide about their children’s medical care exclusively because children cannot decide for themselves. Parent have power to decide about spending primarily because they earned the funds, even if that authority is limited by duties toward children.
An alternative version of this objection is that children own family resources because they contribute to their acquisition, for example because of tax subsidies or because they help parents to earn money by contributing to family happiness. In this sense, parents have money because of children. However, here too, parents do not have this money only because of children. In the case where parents control money that children earn, of course, they have fiduciary duties to manage those funds for the child’s benefit.
This account of parenting might be understood in Kantian terms. Fiduciary duties are an outgrowth of a broader duty not to treat others only as a means. For a Kantian interpretations of fiduciary duties, see Irit Samet, ‘Fiduciary Loyalty as Kantian Virtue’: pp. 125–140 in Philosophical Foundations of Fiduciary Law (Oxford: Oxford University Press, 2014, Andrew Gold & Paul Miller, Eds.); Lionel Smith, ‘Ensuring the Loyal Exercise’, supra.
On non-therapeutic medical research, see Department of Health and Human Services regulations for research on children. 45 CFR §46, subpart D. https://www.hhs.gov/ohrp/regulations-and-policy/regulations/45-cfr-46/common-rule-subpart-d/index.html. On living organ donation, see John Robertson, ‘Organ Donation by Incompetents and the Substituted Judgment Doctrine’, Colum. L. Rev. (76) (1976): pp. 48–78; Lawrence Forlik & Linda Whitton, ‘The UPC Substituted Judgment/Best Interest Standard for Guardian Decisions: A Proposal for Reform’, U. Mich. J. L. Ref. (45) (2012): pp.739–760; Robert Crouch & Carl Elliott, ‘Moral Agency and the Family: The Case of Living Related Organ Transplantation’, Cambridge Quarterly of Healthcare Ethics (8) (1999): pp. 275–287. Another example is allowing conservators of incompetent adults to donate available funds to the conservatee's needy relatives. See Annotation, ‘Power of Court or Guardian to Make Noncharitable Gifts or Allowances out of Funds of Incompetent Ward’, 24 A.L.R.3d 863, 873 (1969).
Matthew Clayton, supra.
For an expanded treatment of this argument, see Scott Altman, ‘Why Parents’ Interests Matter’, __ Ethics (Forthcoming 2023).
Family Values, supra at 121–122. Brighouse and Swift cite as an influence on their role-based view Hannan & Vernon, supra. They are, in turn, cited by Gheaus, ‘Best Available Parent’, supra at 453.
Family Values, supra at 121–122.
AMA Opinion 8.0321 – ‘Physicians’ Self-Referral’, AMA J. Ethics. (17) (2015): pp. 739–743; Ronald Green, ‘Medical Joint-Venturing: An Ethical Perspective’, Hastings Center Report, (20 no. 4) (1990): pp. 22–26.
ABA Model Rules of Professional Conduct 1.8 and comment (regulating lawyers who engage in business transactions with clients, such as selling title insurance or investment services). See also, Oasis West Realty v Goldman, 51 Cal 4th 811 (2011) (lawyer breached fiduciary duty to former client by participating in public hearing against real estate development that lawyer formerly helped to get approved).
The example in text is meant to mirror outcomes suggested by Anca Gheaus's, who thinks we should place all infants with the best available parent. Gheaus, supra. Gheaus says that her argument should not be used for very small harms, though she does not explain why. Id. at 445. The example in text can be restated in whatever way necessary to exceed the threshold of harm needed for her theory to apply.
See Scott Altman, ‘Why Parents’ Interests Matter’, supra; William Galston, Liberal Pluralism (Cambridge: Cambridge University Press, 2002); Colin Macleod, ‘Conceptions of Parental Autonomy’, Politics & Society (25) (1997): pp. 117–140.
They take this position regarding parental control rights, but not about who gets to be a parent. Family Values at 121.
Family Values at 120–122.
Scott & Scott at 2418.
The Princess Bride (1987).
Smith, ‘Parenthood as a Fiduciary Relationship’, supra at 447.
It seems especially surprising coming from Smith, who elsewhere argues that a loyalty is central to fiduciary relationships and generally requires that fiduciaries act for the benefit of others. ‘Ensuring the Loyal Exercise of Judgment’, supra.
See George Gleason Bogert, George Taylor Bogert & Amy Morris Hess, The Law of Trusts & Trustees §543 (June 2021 Update).
See Treatise on the Law of Corporations, supra § 10:12.
See Bayer v. Beran, supra. This view has occasionally been denied, for example in Eileen Scallen, ‘Promises Broken v. Promises Betrayed: Metaphor, Analogy, and the New Fiduciary Principle’, U. Ill. L. Rev. (1993) (1993) pp. 897–980, 908. For an examination of the meaning of fiduciary loyalty, see Andrew Gold, ‘The Loyalties of Fiduciary Law’: pp. 176–194 in Philosophical Foundations of Fiduciary Law; JE Penner, ‘Is Loyalty a Virtue, and Even If It Is, Does It Really Help Explain Fiduciary Liability?’: pp. 159–175 in Philosophical Foundations of Fiduciary Law.
See, e.g., Tamar Frankel, Fiduciary Law, supra. There is a parallel debate in public law about whether and when the government has fiduciary duties and what is required when the government is a fiduciary. See generally, Seth Davis, ‘The False Promise of Fiduciary Government’, Notre Dame L. Rev. (89) (2014): pp. 1145–1208; Andrew S. Gold, ‘Reflections on the State as Fiduciary’, U. Toronto L. J. (63) (2013): pp. 655–670.
Smith, ‘Parenthood as a Fiduciary Relationship’, supra at 448. See also Scallen, supra at 908; Lionel Smith, ‘Can We Be Obliged to Be Selfless?’: pp. 141–158 in Philosophical Foundations of Fiduciary Law.
See Restatement of Trusts 2d §99 (1959).
Typically the duty is stated as an obligation to respect the interests of all beneficiaries. See Frederick-Conaway v. Baird, 159 A.3d 285, 299 (Del. 2017) (‘A beneficiary who is also a fiduciary owes a duty to deal fairly with other beneficiaries and not to place his or her personal interests (as a beneficiary) ahead of the interests of the trust and its other beneficiaries’.). For a recent case showing breach of this duty by a trustee-beneficiary, see Cassibry v. Cassibry, 217 So.3d 698 (Miss. Ct. App. 2017)
Smith, ‘Parenthood as a Fiduciary Relationship’ at 451.
See, e.g., Gary Rubin, ‘Advisers and the Fiduciary Duty Debate’, Bus. & Soc. Rev. (120) (2015): pp. 519–548.
See, e.g., Murphy v. Murphy, 694 A.2d 932 (1997).
For a somewhat similar case, see Thurmond v. Pepper, 119 S.W.2d 900 (1938).
Scott & Scott, supra.
For a similar reading of the Scotts’ claim, see Carl Schneider, ‘On the Duties and Rights of Parents’, Va. L. Rev. (81) (1995): pp. 2447–2491.
Acknowledgments
For helpful comments and discussion, I thank Felipe Jimenez, Greg Keating, Dorothy Lund, Clare Pastore, and Daria Roithmayr. For excellent research assistance, I thank Evelyn Gemberling.
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Altman, S. Are Parents Fiduciaries?. Law and Philos 42, 411–435 (2023). https://doi.org/10.1007/s10982-022-09468-4
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DOI: https://doi.org/10.1007/s10982-022-09468-4