Scott Altman, ‘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 …

Altman, Scott, Are Parents Fiduciaries? (December 6, 2021). USC CLASS Research Paper Series No CLASS21-44, USC Legal Studies Research Paper Series No 21-44.

First posted 2021-12-07 08:17:08

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