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.