Scott and Chen, ‘Fiduciary Principles in Family Law’

Abstract
Family members bear primary responsibility for the care of dependent and vulnerable individuals in our society, and therefore family relationships are infused with fiduciary obligation. Most importantly, the legal relationship between parents and their minor children is best understood as one that is regulated by fiduciary principles. Husbands and wives relate to one another as equals under contemporary law, but this relationship as well is subject to duties of care and loyalty when either spouse is in a condition of dependency. Finally, if an adult is severely intellectually disabled or becomes incapacitated and in need of a guardian, a family member is often preferred to serve in this role.

This chapter examines the application of fiduciary principles and doctrine to close family relationships. The chapter explains that while the parent-child and spousal relationships are governed by fiduciary principles and duties, enforcement of these duties [at least when family relationships are intact] is largely accomplished through informal bonding and monitoring mechanisms. In contrast, when family members become guardians of adult relatives, including elderly parents and disabled adult children, obligations are formally enforced under fiduciary law with minimal recognition of the family bond. The chapter examines the rationales for these contrasting approaches and questions whether adjustments are indicated. It concludes that modest relaxation of formal fiduciary obligations in the context of close family relationships might sometimes serve the interests of the incapacitated adult by supporting her relationship with the family guardian.

Scott, Elizabeth S and Chen, Ben, Fiduciary Principles in Family Law (February 2, 2018). Oxford Handbook of Fiduciary Law (Evan Criddle, Paul Miller and Robert Sitkoff, editors), Oxford University Press, forthcoming; Columbia Public Law Research Paper No 14-577.

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