Trust Between Patients and Providers
Trust between patients and providers is a central topic for bioethics. Consider the trust (or distrust) involved when someone contemplates major surgery: First of all, there is the relation between the surgeon and patient. The patient needs from the physician both a high level of competence (both judgment and skill) and a concern for the patient's wellbeing. For healthcare professionals to behave in a responsible or trustworthy way requires both technical competence and moral concern—specifically, a concern to achieve a good outcome in the matter covered, which is sometimes called "fiduciary responsibility," the responsibility of a person who has been entrusted in some way. The moral and technical components of professional responsibility have led sociologist Bernard Barber to speak of these as two "senses" of trust. However, if the patient trusts the surgeon, it is not in two senses; the patient trusts the surgeon simply to provide a good, or perhaps the best, outcome for the patient. To fulfill that trust, the surgeon needs to be both morally concerned for the patient's well-being (or at least health outcome) and technically competent.
Because the exercise of professional responsibility characteristically draws on a body of specialized knowledge that is brought to bear on the promotion or preservation of another's welfare, to trust someone to fulfill a professional responsibility is to trust that person to perform in a way that someone outside that profession cannot entirely specify, predict, or often even recognize. In drawing attention to this point, Trudy Govier says that trust is "open-ended." The point is not captured in the frequent suggestion that trust is necessary because the trusting party cannot control or monitor the trusted party's performance. It would do the patient little good to have full prescience of all the events in the operation, or even the ability to guide the surgeon's hand, unless the patient also happened to be a surgeon. Although a typical patient might be able to recognize some acts of gross malpractice, such as being stitched up with foreign bodies left inside, the patient would not know the implications of most of what he or she saw and would have no idea of how to improve the surgeon's performance. For this reason, from the point of view of the patient, there are no good alternatives to having trustworthy professionals. There are no good alternatives in these circumstances because the patient must rely on the discretion of the practitioner.
Philosophers like John Ladd and legal theorists like Joel Handler have drawn attention to the role of discretion in many areas of professional practice. They have argued that because of the role of discretion, the criteria for morally responsible practice cannot be specified in terms of rules or rights alone. The centrality of discretion makes it all the more difficult to separate competence (having adequate knowledge and skill) and moral elements (exercising sufficient concern for the client's well-being) in the professional's behavior.
The provider—in this case the surgeon—also must trust the patient. At a minimum, the surgeon depends on the patient to disclose all information relevant to the case so as to minimize the risks of unexpected events in the operating room. If the patient disappoints the surgeon and does not disclose all relevant information, the negative consequence for the surgeon is, at most, to impair the surgeon's professional performance. The disappointment does not carry a risk of death or disability for the surgeon. The difference in the severity of risk is one of the many aspects of a trust relationship that is counted as a difference of power in that relationship. The lesser severity of consequence for the provider—in this case the surgeon—can obscure the mutuality of trust in the patient-provider relationship.
When the provider is a nurse or physical therapist rather than a surgeon, the provider's central tasks often require an understanding of the patient's experiences, hopes, and fears. Although some nursing, such as the work of the surgical nurse who assists in the operating room, does not depend on an understanding of the patient's experience, most nursing does. Postsurgical nursing care is a good example. This care typically includes motivating the patient to do things such as coughing and breathing deeply in order to reduce the risk of postoperative lung infection. These acts are often quite uncomfortable. Such nursing requires an understanding of the individual patient's state of mind and the ability to motivate the patient—the ability to inspire confidence and hope in patients.
CHANGING THE STANDARDS OF THE PATIENT-PROVIDER RELATIONSHIP. When sociologist Talcott Parsons put forward his influential theory that professionals function as trustees, or in a "fiduciary" capacity, the standard for the socalled fiduciary aspects of the relationship between patients and physicians was that the provider furthered the patient's well-being by being entrusted to make medical decisions in the best interests of that patient.
The doctrine of informed consent for medical procedures was adopted only gradually over the next two decades as a check on provider discretion. This doctrine has been implemented to require informed consent only for a very circumscribed set of procedures. To treat competent persons against their will is considered battery, in legal terms. Therefore, there is a foundation in law for the prohibition of forced or nonconsensual treatment of all types. In practice, however, information is often given only for major procedures, and practitioners tend to assume consent for lesser interventions, including most medical tests. Although patient-oriented practitioners will offer an explanation of why they are ordering a particular test, others will explain only when explicitly asked. For procedures other than surgery, formal requests for consent are rare unless there is a significant risk of death or severe disability from the procedure.
Furthermore, most patients are well informed only about the risk of death or significant permanent injury in circumstances in which informed consent is legally or institutionally mandated. Significant risk—such as becoming temporarily psychotic as a result of the trauma of openheart surgery, as a result of intensive-care procedures, or from the sleep deprivation that often results from those procedures—is rarely disclosed to patients. The rationale for not telling a patient about to have bypass surgery or enter intensive care is that the risk will seem so shocking that the patient will refuse needed care.
Although the standard of informed consent is enforced by law and institutional practice only for certain risks of major procedures, the U.S. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (President's Commission) has urged that the informed-consent standard be replaced by another, more comprehensive standard, the standard of shared decision making.
The President's Commission's 1982 report, Making Health Care Decisions, advocated such a shift, which would presumably apply to most significant healthcare decisions. The rule of informed consent requires only the recognition of the patient's right of veto over the alternatives that the provider has presented to the patient. In contrast, shared decision making requires participation of the patient in setting the goals and methods of care and, therefore, in formulating the alternatives to be considered. This participation requires that patients and practitioners engage in complex communication, which the practitioners have a fiduciary responsibility to foster. This new standard is particularly appropriate for a pluralistic society, in which the responsible provider may have an idea of the patient's good that is significantly different from the patient's own idea.
The responsibility to foster shared decision making requires significant skill on the part of medical professionals in understanding patients of diverse backgrounds and in fostering communication with them in difficult circumstances—circumstances in which their communication may be compromised by fear and pain as well as by a lack of medical knowledge. Although some physicians, notably primary-care providers, have sought the skills to fulfill the responsibility to foster such communication, this responsibility is not one that medical education prepares physicians to accept.
IMPLEMENTING THE FIDUCIARY STANDARD. Ironically, although the fiduciary responsibility in healthcare has often been viewed primarily as the responsibility of physicians, as was noted above, it is other classes of providers, especially nurses, who are educated in a way that prepares them to understand patients' experience. Although there is much to recommend the new fiduciary standard in healthcare, its realization requires either a major change in medical education or a change in the relations among members of the healthcare team, so that those who are prepared to oversee and foster shared decision making have the authority to do so. Without such changes, the trust that one's healthcare will be shaped by one's own priorities and concerns is not well founded.
In many cases, distrust of either individual providers or medical institutions has been warranted, especially for women, people of color, and the poor, whose experience has often been discounted or who have been viewed as less rational or less competent than white males. Annette Dula argues that historical events, from the Tuskegee syphilis study to the experience with screening for sickle-cell carrier trait, confirm that trust of the healthcare system on the part of African-Americans is often not warranted (Dula, 1992). The problem is one of the need not only for assurance but also for evidence that the former conditions no longer prevail.
Many poor or uninsured people have not even had a significant patient-provider relationship; when they are able to obtain healthcare, it is often with a provider whom they see in only a single clinical encounter. It is therefore impossible to establish a trusting relationship that would serve the patient's health interest. If society is obliged to provide decent healthcare for its citizens, this failure of the healthcare system is a betrayal of trust not by individual providers but by society and its healthcare institutions.
Trust and Family Members
Trust among family members is at least as important an issue for healthcare as is trust in the provider-patient relationship. The trustworthiness of parents and guardians to decide the care of children and other dependent family members is widely discussed, and trust among family members is beginning to receive more attention in connection with the writing of living wills and health proxy statements. The issues of the competence of family members to give various forms of care or to make technical decisions, and the sufficiency of their concern for the patient's well-being, parallel those issues for providers. The matter is further complicated by the phenomenon of psychological denial that interferes with decision making about the healthcare of a person who is important in one's own life. Denial, as well as incompetence or lack of commitment to the patient's welfare, may compromise a person's decisions or care when the health or life of a close friend or relative is gravely threatened. Therefore, warranted trust in family members to provide or decide one's care requires confidence not only in their competence and in their concern for one's well-being but also in their psychological ability to come to terms with the situation.
Other Areas of Trust in Healthcare
There is also the question of the public's trust in a class of professionals, which is distinct from the question of the public's concern that, should they become clients of these professionals, their interests will be well served. For example, Sissela Bok (1978) has examined the concern about the trustworthiness of lawyers, not by their clients but by the public. Of particular concern is lawyers' commitment to keep the crimes of their clients confidential, even certain ongoing or planned crimes. The public believes that lawyers should not violate usual ethical norms for the sake of their clients' interests. The corresponding issue in healthcare is the fear that providers will, in protecting patient confidentiality, put the public health or the safety of individuals at undue risk. The question of ethical criteria for breaking confidentiality is regularly discussed, especially in the case of a sexually transmitted disease or a patient intent on harming another person. However, there is no widespread public concern that healthcare providers may be going so far in protecting patient confidentiality that they are derelict in protecting the public.
In addition to the public's trust of providers, the trust or distrust of medical technology is often a significant factor. The risk is particularly salient in the case of artificial organs, joints, and other body parts. In place of the components of competence and concern of a trusted provider, the qualities required of a technology to warrant trust are its performance (it performs the function it was designed to perform) and its relative safety (it is relatively unlikely to cause accidents or to have other injurious side effects). Of course, with such life-critical technologies as artificial organs, the performance issue is itself a safety issue.
There are many aspects of the healthcare system on which patients rely but which most rarely consider. Many people become fully aware of their trust only when that trust is disappointed. A case in point is the discovery that research misconduct occurred in a major breast cancer study. The belated revelation of misconduct made patients aware of their trust in medical research.
The Morality of Trust
Although Sissela Bok has discussed trust as a moral resource since the 1970s, the question of the morality of trust relationships—the question of the circumstances under which, from a moral point of view, one ought to trust—was not explicitly discussed until Annette Baier's 1986 essay, "Trust and Anti-Trust." Two earlier essays were important in laying the foundation for this major turn in the discussion. In 1984, Ian Hacking provided a devastating assessment of the use of game theory to understand moral questions, such as the Prisoner's Dilemma, which will be discussed below. Baier herself argued in 1985 for broadening the focus in ethics from obligations and moral rules to the subject of who ought, as a moral matter, to be trusted and when. As Kathryn Addelson points out, Baier's change of focus establishes a general perspective on ethical legitimacy that is shared by all—both the powerful and those whom society labels deviant—rather than privileging the perspective of those who make, instill, and enforce moral rules.
Baier's general account of the morality of trust illuminates the strong relation between the trustworthy and the true. A trust relationship, according to Baier, is decent to the extent that it stands the test of disclosure of the premises of each party's trust (Baier, 1986). For example, if one party trusts the other to perform as needed only because the truster believes the trusted is too timid or unimaginative to do otherwise, disclosure of these premises will tend to insult the trusted party and give him or her an incentive to prove the truster wrong. Similarly, if the trusted party fulfills the truster's expectations only through fear of detection and punishment, disclosure of these premises may lead the truster to suspect that the trusted would betray the trust, given an anonymous opportunity to do so.
Although explicit discussion of moral trustworthiness is relatively recent, both professional ethics and the philosophy of technology have given considerable attention to the concept of responsibility. Since being trustworthy is key to acting responsibly in a professional capacity, or to being a responsible person if one considers responsibility a virtue, the literature on responsibility provides at least an implicit discussion of many aspects of the morality of trust, much of which is relevant to the subject of trust in healthcare.
Trust involves both confidence and reliance. Annette Baier(1986) argues that if we lack other options, we may continue to rely on something even when we no longer trust it. Similarly, we may have confidence in something, or confidence in our expectations concerning it, without relying on it. To rely only on what we can trust is a fortunate circumstance.
Niklas Luhmann (1988) urges a different distinction between confidence and trust, suggesting that trust be used only when the truster has considered the alternatives to trusting. Such use is incompatible with unconscious trust, a phenomenon to which Baier draws attention. Luhmann's discussion of the distinction between trust and confidence highlights the element of risk in trusting. Risk or vulnerability does characterize situations in which trust is necessary, in contrast to situations in which one's control of the outcome makes trust unnecessary. However, the element of risk taking in trust is captured in the notion of reliance when trust is understood as confident reliance. Being vulnerable in one's reliance does not require that one have considered the alternatives, if any, to such reliance.
Although one often trusts people, their intentions and goodwill, there is also trust in mere circumstances or events: One may trust that a taxi will come along shortly, even if no taxi has been ordered, without believing anything about another person's reliability in providing a taxi.
The risk taken in trusting does leave the truster liable to disappointment (or worse), whether that trust is of persons or events. But only when trust is in other people, and not merely in the events involving them, can one be let down by them. Suppose that a person is awakened every weekday by another person's calling for a neighbor. If the first person has come to rely on being awakened, but one day the other person does not come for the neighbor or does so quietly, the first person's expectations will be disappointed. But the person will not have been disappointed or let down by the one who usually picks up the neighbor. To be disappointed by another person, that person must at least be aware of doing or not doing the act in question. Here the person doing the calling for the neighbor is not aware of waking up the first party, much less of being trusted to do it. As Baier mentions (1986), it is possible for there to be trust of which the trusted person is unaware, and so one might let down another without being aware of letting that person down.
Niklas Luhmann (1979) has shown how trust simplifies human life by endowing some expectations with assurance. To consider all possible disappointments, defections, and betrayals by those on whom we rely, the possible consequences of those disappointments, and any actions that one might take to prevent those disappointments or change their effect is prohibitively costly in terms of time and energy. Trust reduces that burden.
The Literature on Trust
Sociologists like Bernard Barber and Luhmann (1979, 1988) have written on many facets of the notion of trust, and legal theorists have reflected on the distinct, though related, notion of a legal trust. Until the 1980s, however, the explicit attention given to the common notion of trust, or confident reliance, in Anglo-American philosophy was largely in relation to such questions as how the "prisoners" in the so-called Prisoner's Dilemma might solve their problem of assurance with regard to one another's behavior so as to cooperate in achieving a mutually beneficial outcome. (In the Prisoner's Dilemma, each of two prisoners will receive a light sentence if neither confesses to a crime, and a more severe sentence if both confess; but if one confesses and the other does not, the latter will be freed, but the former will receive the most severe sentence of all. Without assurance about each other's behavior, and in spite of knowing that both would be better off if neither confesses, both are likely to confess and be less well off.)
Recent literature on trust has examined trust in a variety of different social circumstances, involving a wide range of objects and systems, persons in a wide variety of roles, and matters in which they might be trusted or distrusted. For example, some writers focus on cases of the breakdown of trust in war, under the influence of the Mafia, or in some other extreme situation. Differences in the domain of application of the notion of trust lead to an unusually wide range of estimates of its character and importance. They also lead to disparate distinctions between trust and such notions as reliance, faith, vulnerability, and confidence, as well as to different conclusions about the moral value and the moral risks associated with trust.
Those who write about trust in a market context often take economic rationality—according to which each person simply seeks to maximize his or her goals by the most efficient means—as their model. They then often regard trust as a way of coping with imperfect rationality, understood as uncertainty about the facts or about one another's behavior, and how to estimate the consequences for the achievement of one's goals. The economic model of rationality is not readily applicable in considerations of ethics because it was designed to avoid consideration of values other than efficiency, and it treats moral considerations as nonobjective personal preferences. Where a market context is assumed, the relatively minor risk of being a "sucker" is likely to be mentioned as a barrier to trust. (See, for example, Dasgupta.) In discussions of trust among family members or between nations (Bok, 1990a), much more is recognized to be at stake.
Feminists like Trudy Govier argue that attention to trust relationships will bring attention to other relationships, such as those between parents and children, that have been neglected when contracts are the focus of attention. Such relationships, however, together with the features of trust that are prominent in them, continue to be ignored in much of the literature on trust. For example, Geoffrey Hawthorn mentions a parent's nonegotistic motives toward his or her child, only to turn immediately to "more ordinary" instances of nonegoistic motives.
Bernard Williams, who begins his own essay with a discussion of the Prisoner's Dilemma, argues that the problem of how nonegoistic motivation is to be encouraged and legitimated does not have a general solution. He argues that the problem of trust or cooperation is not one that can be solved in a general way at the level of decision theory, social psychology, or the general theory of social institutions. To ensure cooperation in a given situation requires an understanding of the ways in which the people in that situation are motivated. Williams believes that solutions to the problem of cooperation are found only for particular historically shaped societies, rather than for society in general. He argues that investigating the sorts of combinations of motivations that make sense in that society might lead to a general perspective on the problems of cooperation in such a society. However, as he says, "there is no one problem of cooperation: the problem is always how a given set of people cooperate" (p. 13). Those whose cooperation is of the greatest interest in bioethics are patients, their families, the healthcare providers, and the policymakers who shape the healthcare system.
caroline whitbeck (1995)
SEE ALSO: Beneficence; Care; Confidentiality; Family and Family Medicine; Health and Disease: The Experience of Health and Illness; Informed Consent; Malpractice, Medical; Patients' Responsibilities; Patients' Rights; Privacy and Confidentiality in Research; Privacy in Healthcare; Teams, Healthcare; Virtue and Character
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Baier, Annette. 1985. "What Do Women Want in a Moral Theory?" Nous 19(1): 53–63. Reprinted in her Moral Prejudices: Essays on Ethics. Cambridge, MA: Harvard University Press, 1994.
Baier, Annette. 1986. "Trust and Antitrust." Ethics 96(2): 232–260. Reprinted in her Moral Prejudices: Essays on Ethics. Cambridge, MA: Harvard University Press, 1994.
Baier, Annette. 1993. "Trust and Distrust of Moral Theorists." In Applied Ethics: A Reader, eds. Earl R. Winkler and Jerrold R. Coombs. Oxford: Basil Blackwell.
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A relationship created at the direction of an individual, in which one or more persons hold the individual's property subject to certain duties to use and protect it for the benefit of others.
Individuals may control the distribution of their property during their lives or after their deaths through the use of a trust. There are many types of trusts and many purposes for their creation. A trust may be created for the financial benefit of the person creating the trust, a surviving spouse or minor children, or a charitable purpose. Though a variety of trusts are permitted by law, trust arrangements that are attempts to evade creditors or lawful responsibilities will be declared void by the courts.
The law of trusts is voluminous and often complicated, but generally it is concerned with whether a trust has been created, whether it is a public or private trust, whether it is legal, and whether the trustee has lawfully managed the trust and trust property.
The person who creates the trust is the settlor. The person who holds the property for another's benefit is the trustee. The person who is benefited by the trust is the beneficiary, or cestui que trust. The property that comprises the trust is the trust res, corpus, principal, or subject matter. For example, a parent signs over certain stock to a bank to manage for a child, with instructions to give the dividend checks to him each year until he becomes 21 years of age, at which time he is to receive all the stock. The parent is the settlor, the bank is the trustee, the stock is the trust res, and the child is the beneficiary.
A fiduciary relationship exists in the law of trusts whenever the settlor relies on the trustee and places special confidence in her. The trustee must act in good faith with strict honesty and due regard to protect and serve the interests of the beneficiaries. The trustee also has a fiduciary relationship with the beneficiaries of the trust.
A trustee takes legal title to the trust res, which means that the trustee's interest in the property appears to be one of complete ownership and possession, but the trustee does not have the right to receive any benefits from the property. The right to benefit from the property, known as equitable title, belongs to the beneficiary.
The terms of the trust are the duties and powers of the trustee and the rights of the beneficiary conferred by the settlor when he created the trust.
State statutes and court decisions govern the law of trusts. The validity of a trust of real property is determined by the law of the state where the property is located. The law of the state of the permanent residence (domicile) of the settlor frequently governs a trust of personal property, but courts also consider a number of factors—such as the intention of the settlor, the state where the settlor lives, the state where the trustee lives, and the location of the trust property—when deciding which state has the greatest interest in regulating the trust property.
As a general rule, personal property can be held in a trust created orally. Express trusts of real property, however, must be in writing to be enforced. When a person creates a trust in his will, the resulting testamentary trust will be valid only if the will itself conforms to the requirements of state law for wills. Some states have adopted all or part of the uniform probate code, which governs both wills and testamentary trusts.
An express trust is created when the settlor expresses an intention either orally or in writing to establish the trust and complies with the required formalities. An express trust is what people usually mean when they refer to a trust.
Every private trust consists of four distinct elements: an intention of the settlor to create the trust, a res or subject matter, a trustee, and a beneficiary. Unless these elements are present, a court cannot enforce an arrangement as a trust.
Intention The settlor must intend to impose enforceable duties on a trustee to deal with the property for the benefit of another. Intent can be demonstrated by words, conduct, or both. It is immaterial whether the word trust is used in the trust document. Sometimes, however, the words used by the settlor are equivocal and there is doubt whether the settlor intended to create a trust. If the settlor uses words that express merely the desire to do something, such as the terms desire, wish, or hope, these precatory words (words expressing a wish) may create a moral obligation, but they do not create a legal one. In this situation a court will consider the entire document and the circumstances of the person who attempted to create the trust to determine whether a trust should be established.
The settlor must intend to create a present trust. Demonstrating an intent to create a trust in the future is legally ineffective. When a settlor does not immediately designate the beneficiary, the trustee, or the trust property, a trust is not created until the designations are made.
Res or Subject Matter An essential element of every trust is the trust property or res. Property must exist and be definite or definitely ascertainable at the time the trust is created and throughout its existence. Although stocks, bonds, and deeds are the most common types of trust property, any property interest that can be freely transferred by the settlor can be held in trust, including patents, copyrights, and trademarks. A mere expectancy—the anticipation of receiving a gift by will, for example—cannot be held in trust for another because no property interest exists at that time.
If the subject matter of a trust is totally destroyed, the trust ends. The beneficiary might have a claim against the trustee for breach of trust, however, if the trustee was negligent in failing to insure the trust property. If insurance proceeds are paid as a result of the destruction, the trust should be administered from them.
Trustee Any person who has the legal capacity to take, hold, and administer property for her own use can take, hold, and administer property in trust. Nonresidents of the state in which the trust is to be administered can be trustees. State law determines whether an alien can act as a trustee.
A corporation can act as a trustee. For example, a trust company is a bank that has been named by a settlor to act as trustee in managing a trust. A partnership can serve as a trustee if state law permits. An unincorporated association, such as a labor union or social club, usually cannot serve as a trustee.
The United States, a state, or a municipal corporation can take and hold property as trustee. This arrangement usually occurs when a settlor creates a trust for the benefit of a military academy or a state college, or when the settlor sets aside property as a park for the community.
The failure of a settlor to name a trustee does not void a trust. The court appoints a trustee to administer the trust and orders the person having legal title to the property to convey it to the appointed trustee.
If two or more trustees are appointed, they always hold the title to trust property in joint tenancy with the right of survivorship. If one joint tenant dies, the surviving joint tenant inherits the entire interest, not just her proportionate share.
A trustee cannot resign without the permission of the court unless the trust instrument so provides or unless all of the beneficiaries who are legally capable to do so consent to the resignation. The court usually permits the trustee to resign if continuing to serve will be an unreasonable burden for the trustee and the resignation will not be greatly detrimental to the trust.
The removal of a trustee is within the discretion of the court. A trustee can be removed for habitual drunkenness, dishonesty, incompetency in handling trust property, or the dissipation of the trustee estate. Mere friction or incompatibility between the trustee and the beneficiary is insufficient, however, to justify removal unless it endangers the trust property or makes the accomplishment of the trust impossible.
Beneficiary Every private trust must have a designated beneficiary or one so described that his identity can be learned when the trust is created or within the time limit of the rule against perpetuities, which is usually measured by the life of a person alive or conceived at the time the trust is created plus 21 years. This rule of law, which varies from state to state, is designed to prevent a person from tying up property in a trust for an unlimited number of years.
A person or corporation legally capable of taking and holding legal title to property can be a beneficiary of a trust. Partnerships and unincorporated associations can also be beneficiaries. Unless restricted by law, aliens can also be beneficiaries.
A class of persons can be named the beneficiary of a trust as long as the class is definite or definitely ascertainable. If property is left in trust for "my children," the class is definite and the trust is valid. When a trust is designated "for my family," the validity of the trust depends on whether the court construes the term to mean immediate family—in which case the class is definite—or all relations. If the latter is meant, the trust will fail because the class is indefinite.
When an ascertainable class exists, a settlor may grant the trustee the right to select beneficiaries from that class. However, a trust created for the benefit of any person selected by the trustee is not enforceable.
If the settlor's designation of an individual beneficiary or a class of beneficiaries is so vague or indefinite that the individual or group cannot be determined with reasonable clarity, the trust will fail.
The beneficiaries of a trust hold their equitable interest as tenants in common unless the trust instrument provides that they shall hold as joint tenants. For example, three beneficiaries each own an undivided one-third of the equitable title in the trust property. If they take as tenants in common, upon their deaths their heirs will inherit their proportionate shares. If, however, the settlor specified in the trust document that they are to take as joint tenants, then upon the death of one, the two beneficiaries will divide his share. Upon the death of one of the remaining two, the lone survivor will enjoy the complete benefits of the trust.
Creation of Express Trusts
To create an express trust, the settlor must own or have power of attorney over the property that is to become the trust property or must have the power to create such property. The settlor must be legally competent to create a trust.
A trust cannot be created for an illegal purpose, such as to defraud creditors or to deprive a spouse of her rightful elective share. The purpose of a trust is considered illegal when it is aimed at accomplishing objectives contrary to public policy. For example, a trust provision that encourages divorce, prevents a marriage, or violates the rule against perpetuities generally will not be enforced.
If the illegal provision pertains to the whole trust, the trust fails in its entirety. If, however, it does not affect the entire trust, only the illegal provision is stricken, and the trust is given effect without it.
Methods of Creation
A trust may be created by an express declaration of trust, a transfer in trust made either during a settlor's lifetime or under her will, an exercise of the power of appointment, a contractual arrangement, or statute. The method used for creating the trust depends on the relationship of the settlor to the property interest that is to constitute the trust property.
Declaration of Trust A trust is created by a declaration of trust when the owner of property announces that she holds it as a trustee for the benefit of another. There is no need for a transfer because the trustee already has legal title. An oral declaration is usually sufficient to transfer equitable title to personal property, but a written declaration is usually required with respect to real property.
Trust Transfers A trust is created when property is transferred in trust to a trustee for the benefit of another or even for the benefit of the settlor. Legal title passes to the trustee, and the beneficiary receives equitable title in the property. The settlor has no remaining interest in the property. A transfer in trust can be executed by a deed or some other arrangement during the settlor's lifetime. This is known as an inter vivos trust or living trust.
Powers of Appointment A power of appointment is the right that one person, called the donor, gives in a deed or a will to another, the donee, to "appoint" or select individuals, the appointees, who should benefit from the donor's will, deed, or trust. A person holding a general power of appointment can create a trust according to the donor's direction by appointing a person as trustee to hold the trust property for anyone, including herself or her estate. If that person holds a special power of appointment, she cannot appoint herself.
Contracts Trusts can be created by various types of contractual arrangements. For example, a person can take out a life insurance policy on his own life and pay the premiums on the policy.
The insurer, in return, promises to pay the proceeds of the policy to an individual who is to act as a trustee for an individual named by the insured. The trustee is given the duty to support the beneficiary of this trust from the proceeds during the beneficiary's life. The insured as settlor creates a trust by entering into a contract with the insurance company in favor of a trustee. The trust, called an insurance trust, is created when the insurance company issues its policy.
Statute Statutes provide for the creation of trusts in various instances. In the case of wrongful death, statutes often provide that a right of action exists in the surviving spouse or executor or administrator of the decedent with any recovery held in trust for the designated beneficiaries.
Protection of Beneficiary's Interest from Creditors
Various trust devices have been developed to protect a beneficiary's interest from creditors. The most common are spendthrift trusts, discretionary trusts, and support trusts. Such devices safeguard the trust property while the trustee retains it. Once funds have been paid to the beneficiary, however, any attempt at imposing restraint on the transferability of his interest is invalid.
Spendthrift Trusts A spendthrift trust is one in which, because of either a direction of the settlor or statute, the beneficiary is unable to transfer his right to future payments of income or capital, and creditors are unable to obtain the beneficiary's interest in future distributions from the trust for the payment of debts. Such trusts are ordinarily created with the aim of providing a fund for the maintenance of another, known as the spendthrift, while at the same time protecting the trust against the beneficiary's shortsightedness, extravagance, and inability to manage his financial affairs. Such trusts do not restrict creditors' rights to the property after the beneficiary receives it, but the creditors cannot compel the trustee to pay them directly.
The majority of states authorize spendthrift trusts. Those that do not will void such provisions so that the beneficiary can transfer his rights and creditors can reach the right to future income.
Discretionary Trusts A discretionary trust authorizes the trustee to pay to the beneficiary only as much of the income or capital of the trust as the trustee sees fit to use for that purpose, with the remaining income or capital reserved for another purpose. This discretion allows the trustee to give the beneficiary some benefits under the trust or to give her nothing. The beneficiary cannot force the trustee to use any of the trust property for the beneficiary's benefit. Such a trust gives the beneficiary no interest that can be transferred or reached by creditors until the trustee has decided to pay or apply some of the trust property for the beneficiary.
Support Trusts A trust that directs that the trustee shall pay or apply only so much of the income and principal as is necessary for the education and support of a beneficiary is a support trust. The interest of the beneficiary cannot be transferred. Paying money to an assignee of the beneficiary or to creditors would defeat the objectives of the trust. Support trusts are used, for the most part, in jurisdictions that prohibit spendthrift trusts.
The purpose of a charitable trust is to accomplish a substantial social benefit for some portion of the public. The law favors charitable trusts by according them certain privileges, such as an advantageous tax status. Before a court will enforce a charitable trust, however, it must examine the alleged charity and evaluate its social benefits. The court cannot rely on the settlor's view that the trust is charitable.
To be valid, a charitable trust must meet certain requirements. The settlor must have the intent to create a charitable trust, there must be a trustee to administer the trust, which consists of some trust property, and the charitable purpose must be expressly designated. The beneficiary must be a definite segment of the community composed of indefinite persons. Selected persons within the class must actually receive the benefit. The requirements of intention, trustee, and res in a charitable trust are the same as those in a private trust.
Charitable Purpose A charitable purpose is one that benefits, improves, or uplifts humankind mentally, morally, or physically. The relief of poverty, the improvement of government, and the advancement of religion, education, or health are some examples of charitable purposes.
Beneficiaries The class to be benefited in a charitable trust must be a definite segment of the public. It must be large enough so that the community in general is affected and has an interest in the enforcement of the trust, yet it must not include the entire human race. Within the class, however, the specific persons to benefit must be indefinite. A trust "for the benefit of orphans of veterans of the 1991 Gulf War" is charitable because the class or category of beneficiaries is definite. The indefinite persons within the class are the individuals ultimately selected by the trustee to receive the provided benefit.
A trust for designated persons or a trust for profit cannot be a charitable trust. A trust to "erect and maintain a hospital" might be charitable even though the hospital charges the patients who are served, provided that any profits are used solely to continue the charitable services of the hospital.
As a general rule, a charitable trust may last forever, unlike a private trust. In a private trust, the designated beneficiary is the proper person to enforce the trust. In a charitable trust, the state attorney general, who represents the public interest, is the proper person to enforce the trust.
Cy Pres Doctrine The doctrine of cy pres, taken from the phrase cy pres comme possible (French for "as near as possible"), refers to the power of a court to change administrative provisions in a charitable trust when the settlor's directions hinder the trustee in accomplishing the trust purpose. A court also has the power under the cy pres doctrine to order the trust funds to be applied to a charitable purpose other than the one named by the settlor. This will occur if it has become impossible, impractical, or inexpedient to accomplish the settlor's charitable purpose. Because a charitable trust can last forever, many purposes become obsolete because of changing economic, social, political, or other conditions. For example, a trust created in 1930 to combat smallpox would be of little practical value today because medical advances have virtually eliminated the disease. When the cy pres doctrine is applied, the court reasons that the settlor would have wanted her general charitable purposes implemented despite the changing conditions.
The cy pres doctrine can be applied only by a court, never by the trustees of the trust, who must execute the terms of the trust. Trustees can apply to the court, however, for cy pres instructions when they believe that the trust arrangements warrant it.
The terms of a trust instrument, when a writing is required, or the statements of a settlor, when she creates a trust, set specific powers or duties that the trustee has in administering the trust property. These express powers, which are unequivocal and directly granted to the trustee, frequently consist of the power to sell the original trust property, invest the proceeds of any property sold, and collect the income of the trust property and pay it to the beneficiaries. The trustee also has implied powers that the settlor is deemed to have intended because they are necessary to fulfill the purposes of the trust.
A settlor can order the trustee to perform a certain act during the administration of the trust, such as selling trust realty as soon as possible and investing the proceeds in bonds. This power to sell is a mandatory or an imperative power. If the trustee fails to execute this power, he has committed a breach of trust. The beneficiary can obtain a court order compelling the trustee to perform the act, or the court can order the trustee to pay damages for delaying or failing to use the power. The court can also remove the trustee and appoint one who will exercise the power.
Courts usually will not set aside the decision of a trustee as long as the trustee made the decision in good faith after considering the settlor's intended purpose of the trust and the circumstances of the beneficiaries. A court will not tell a trustee how to exercise his discretionary powers. It will only direct the trustee to use his own judgment. If, however, the trustee refuses to do so or does so in bad faith or arbitrarily, a beneficiary can seek court intervention.
A trustee, as a fiduciary, must administer the trust with the skill and prudence that any reasonable and careful person would use in conducting her own financial affairs. The trustee's actions must conform to the trust purposes. Failure to act in this manner will render a trustee liable for breach of trust, regardless of whether she acted in good faith.
A trustee must be loyal to the beneficiaries, administering the trust solely for their benefit and to the exclusion of any considerations of personal profit or advantage. A trustee would violate her fiduciary duty and demonstrate a conflict of interest if, for example, she sold trust property to herself.
A trustee has the duty to defend the trust and the interests of the beneficiaries against baseless claims that the trust is invalid. If the claim is valid, however, and it would be useless to defend against such a challenge, the trustee should accede to the claim to avoid any unnecessary waste of property.
Trust property must be designated as such and segregated from a trustee's individual property and from property the trustee might hold in trust for others. This requirement enables a trustee to properly maintain the property and allows the beneficiary to easily trace it in the event of the trustee's death or insolvency.
Generally, a trustee is directed to collect and distribute income and has the duty to invest the trust property in income-producing assets as soon as is reasonable. This duty of investment is controlled by the settlor's directions in the trust document, court orders, the consent of the beneficiaries, or statute. Some states have statutes that list various types of investments that a trustee may or must make. Such laws are known as legal list statutes.
One of the principal duties of a trustee is to make payments of income and distribute the trust principal according to the terms of the trust, unless otherwise directed by a court. Unless a settlor expressly reserves such power when creating the trust, she cannot modify its payment provisions. In addition, the trustee cannot alter the terms of payment without obtaining approval of all the beneficiaries. Courts are empowered to permit the trustee to deviate from the trust terms with respect to the time and the form of payment, but the relative size of the beneficiaries' interests cannot be changed. If a beneficiary is in dire need of funds, courts will accelerate the payment. This is called "hastening the enjoyment."
Revocation or Modification
The creation of a trust is actually a conveyance of the settlor's property, usually as a gift. A trust cannot be cancelled or set aside at the option of the settlor should the settlor change his mind or become dissatisfied with the trust, unless the trust instrument so provides. If the settlor reserves the power to revoke or modify only in a particular manner, he can do so only in that manner. Otherwise, the revocation or modification can be accomplished in any manner that sufficiently demonstrates the settlor's intention to revoke or modify.
The period of time for which a trust is to operate is usually expressly prescribed in the trust instrument. A settlor can state that the trust shall last until the beneficiary reaches a particular age or until the beneficiary marries. When this period expires, the trust ends.
When the duration of a trust is not expressly fixed, the basic rule is that a trust will last no longer than necessary for the accomplishment of its purpose. A trust to educate a person's grandchildren would terminate when their education is completed. A trust also concludes when its purposes become impossible or illegal.
When all the beneficiaries and the settlor join in applying to the court to have the trust terminated, it will be ended even though the purposes that the settlor originally contemplated have not been accomplished. If the settlor does not join in the action, and if one or more of the purposes of the trust can still be attained by continuing the trust, the majority of U.S. courts refuse to grant a decree of termination. Testamentary trusts cannot be terminated.
Abts, Henry W. 2002. The Living Trust: The Failproof Way to Pass Along Your Estate to Your Heirs. 3d ed. New York: McGraw-Hill.
American Law Institute. 2003. Restatement of the Law, Trusts. St. Paul, Minn.: American Law Institute.
Kruse, Clifton B., Jr. 2002. Third-Party and Self-Created Trusts: Planning for the Elderly and Disabled Client. Chicago: Section of Real Property, Probate, and Trust Law, ABA.
Rothschild, Gideon, Daniel S. Rubin, and Jonathan G. Blattmachr. 1999. "Self-Settled Spendthrift Trusts: Should a Few Bad Apples Spoil the Bunch?" Journal of Bankruptcy Law and Practice (November/December).
Trust in an intimate partner or family member occupies a central place in a rewarding and successful relationship. Consistently, trust is regarded as one of, if not the, most important component of a loving relationship (Regan, Kocan, and Whitlock 1998), and international studies have found trust to be a critical factor in the success of long-term marriages (Roizblatt et al. 1999; Sharlin 1996). Indeed, feelings of trust early in a marriage are predictive of marital adjustment two years later. There is no question that trust plays an important role in social interaction. This chapter will specifically examine the development and impact of trust in intimate relationships.
Trust is a fundamental component of virtually all social interactions. In the context of a close relationship, trust refers to the level of confidence we have that the other person will act in ways that will fulfill our expectations. This confidence does not merely reflect an intellectual assessment of the likelihood that a partner will act as anticipated, but also an emotionally experienced sense of security and assurance in the partner's behavior and motives.
The fulfillment of many of our most cherished hopes and dreams requires the active presence and participation of important people in our lives in ways that are frequently beyond our control. Yet how do we characterize the multitude of goals, plans, and expectations that we have for others and ourselves? Trust researchers have offered various systems for organizing these expectations and, despite the differences in these organizational schemes, they tend to share one common theme. In virtually all cases, researchers have related trust to what they consider to be the most important interpersonal goal in a close relationship—the belief that our partner is motivated by feelings of responsiveness and caring towards us.
Robert Larzelere and Ted Huston (1980) have suggested that the most important expectations involve confidence in another person's benevolence and honesty or sincerity. Benevolence involves a genuine concern for the other's welfare and the motivation to maximize positive outcomes. Thus, for Larzelere and Huston, the core issues of trust in a close relationship involve the expectations that the other person cares and can be believed.
Similarly, Cynthia Johnson-George and Walter Swap (1982) developed a measure of emotional trust that taps into expectations of a partner's openness, honesty, and concern for the other's welfare. Again, the most important set of expectations involves confidence in a partner's expressions of caring and concern.
This same theme also occurs in the work of John Holmes and John Rempel and their colleagues. For example, Rempel, Holmes, and Mark Zanna (1985) organized expectations along a dimension from specific concrete behaviors to abstract interpersonal motives. Predictability is the most concrete dimension and it refers to expectations for specific behaviors. Dependability refers to expectations based more on qualities and characteristics such as honesty and reliability that identify the partner as a trustworthy person. Finally, faith, the most general and abstract level of expectations, reflects an emotional security that enables people to go beyond the available evidence and feel, with assurance, that their partner will be responsive and caring whatever the future may hold. An emphasis on a partner's motives of love and caring as the central component of trust in a close relationship occurs consistently in other work produced by these authors (e.g., Holmes 1991; Holmes and Rempel 1989).
Thus, the most important aspect of trust in an intimate relationship appears to involve expectations that individuals will be caring and will act in ways that will take the needs and desires of their partner into account, even at a cost to themselves. Confidence in this central belief may translate into a host of more specific goals and expectations unique to each couple.
The Development of Trust
As with many aspects of our lives, there is evidence that the foundation for trust is established in early relationships with primary caregivers. In his influential theory of psychosocial development, Erik Erikson theorized that the critical developmental task or "crisis" that must be confronted during the first year of life is trust versus mistrust. Trust in infancy sets the stage for a lifelong expectation that the world will be a good and pleasant place in which to live.
This idea is echoed in the foundational thinking and research of attachment theorists John Bowlby and Mary Ainsworth and her colleagues. If caregivers are sensitive and responsive to their infant's needs, the infants develop a secure attachment—they learn that the world is a safe place where others can be relied on, and they come to feel that they are worthy of being cared for. If caregivers respond inconsistently or are not responsive to their infant's needs, these infants develop an insecure attachment—they learn that the world is an unpredictable or hostile place where they cannot rely on others to care for them. Given these beginnings, it is not surprising to find that trust is indicative of secure attachment, not only in children, but also in adults (Mikulincer 1998).
Thus, there is evidence that people's earliest relationships establish a foundation for trust that can set the stage for their adult relationships. Current research suggests that parents shape their children's trust beliefs (Rotenburg 1995) and that feelings of trust in young adults are related to the experience of deep attachment to their parents (Amagai 1999). Indeed, in a longitudinal study, Kristina Moeller and Hakan Stattin (2001) report that adolescents with trustful parental relationships experienced greater satisfaction with their partner relationships in midlife.
The suggestion that the capacity to trust is rooted in the social interactions of infancy may imply that trust is a learned personality characteristic that people develop and subsequently carry from relationship to relationship. Certainly there is evidence to suggest that people do differ in global trust, the extent to which they trust other people in general (Rotter 1967). In addition, Laurie Couch and Warren Jones (1997) have suggested that there may be relatively stable individual differences in network trust, the extent to which people trust their family and friends.
However, even if people differ in their general tendency to trust others, there is currently no reason to believe that these levels are completely fixed and immovable. Certainly there is anecdotal evidence to suggest that, with time, even individuals who have been badly scarred by their past experiences can learn to put their faith in people who prove themselves to be consistently caring and trustworthy. More importantly, even if people do have a general capacity to trust based on their social history, the distinct features of a unique relationship with a specific individual will ultimately determine how much confidence people are willing to place in that person's motives.
How is it that people develop relational trust (Couch and Jones 1997)—trust in a relationship with a specific individual? Currently there are no definitive answers to this question, but scholars generally agree that trust is demonstrated most clearly in situations of risk and vulnerability. As paradoxical as it may sound, people can only learn about how much a partner genuinely cares for them when it is possible for that partner to act in an untrustworthy manner. Only in circumstances where there is a risk of betrayal and disappointment will people be able to confidently regard their partner's behaviors as voluntary actions motivated by feelings of love. Trust in a close relationship develops as each person demonstrates a willingness to respond to the needs and concerns of their partner at some personal cost to themselves.
Although risk-taking fuels the development of trust (Boon 1994), the strength and pattern of interactions involving risk will change as the relationship progresses. The earliest expressions of confidence in a romantic partner may reflect a "blind trust" in an idealized image of the partner constructed from carefully selected fragments of information. Indeed, strong feelings of trust appear to be present even among casually dating couples who have had few opportunities to base their feelings of trust on diagnostic experiences involving risk and vulnerability (Larzelere and Huston 1980). Nonetheless, at some level, newly formed couples seem to realize that their indiscriminate trust is built on a fragile foundation. During the transition from a platonic to a romantic relationship, couples are particularly likely to use social strategies—or "secret tests"—to assess the state of their relationship (Baxter and Wilmot 1984). Furthermore, as intimacy grows, the idealized depictions of the partner are increasingly challenged by evidence from the partner's actual behaviors. Feelings of confidence may be called into question as the lofty images of the partner are replaced with more realistic assessments of the partner's shortcomings (Holmes 1991).
As the relationship progresses there are increasing opportunities for uncertainty to develop, but these same situations also offer opportunities for trust to grow. As the lives of both partners become increasingly intertwined, the possibilities for conflict are intensified. These points of conflict carry with them risks of rejection and harm but, at the same time, they offer opportunities for each partner to demonstrate concern for the relationship and a willingness to take the other's needs into account. If conflict issues are successfully resolved, not only is trust strengthened, but each partner also develops greater confidence that future problems can be solved together.
Thus, trust develops as people demonstrate a willingness to sacrifice their own interests in order to take the needs and concerns of their partner into account. With each successful experience of disclosure or conflict resolution there is further evidence of the partner's commitment to the relationship and greater confidence that the relationship will last and grow stronger.
The Impact of Trust in Established Relationships
Trust is a dynamic process. Even after a solid foundation of trust has been established, feelings of confidence continue to respond to changes and transitions in the relationship. Just as trust has been built up, it can also wear down. The impact that different levels of trust have on the nature of a close relationship has only recently become the subject of study, and much still remains to be learned. However, from the evidence that already exists, it is clear that the relationships of people with higher levels of trust are categorically different from relationships where trust levels are lower. In an important set of longitudinal studies of commitment and trust, Jennifer Wieselquist and her colleagues (1999) have provided evidence that changes in trust are related to the perception of a partner's positive actions. Individuals come to trust their partners when they are committed to them and when they perceive that their partners have acted in positive ways. Additionally, it has been shown that changes in trust must ultimately reflect changes in attributions to the partner's motives (Miller and Rempel 2000). People must not only notice their partner's behavior, they must interpret it differently from how they have in the past. In this respect, trust can act as a "filter" through which new events and experiences are interpreted.
The beliefs of high-trust people are anchored both by positive conclusions about their partner's motives drawn from past evidence and by faith in what the future holds. They expect their partner to act in ways that are motivated by a desire to improve the relationship. Even when faced with events that could potentially challenge their convictions, such as a conflict or disagreement, people in high-trust relationships are unlikely to call their partner's motives into question. Rather, as much as possible, negative events are seen as less significant when compared against the large accumulation of positive experiences. Negative incidents are likely to be explained in less harmful ways, treated as isolated events, or understood to reflect an unfortunate, but less significant component of the relationship. This is not to say that trusting people are unaware of or naïvely ignore the negative events that occur in their relationship. However, unless an incident truly merits suspicion, they tend to place some limits on the negative implications the event could have for their relationship. Thus, a high-trust relationship is one in which partners share openly with each other and give each other the benefit of the doubt.
For many couples, a trusting relationship remains an elusive goal. For some, past experiences with parents or former partners have left them unable to completely set their doubts aside and confidently relinquish control to an intimate partner. Others, who started out with high levels of trust, may have run out of convincing charitable explanations for their partner's negative behaviors. Worn down from the accumulated weight of evidence, they increasingly entertain doubts and concerns about their partner's caring motives.
Whatever the cause, people in medium-trust relationships are uncertain about their partner's intentions and they are alert for signs that indicate further risk. They still have hope for their relationship and they may long to achieve the elusive sense of security. Yet, ironically, despite a desire for positive convictions, people in medium-trust relationships appear to place greater emphasis on negative events in their relationship. Recent studies have shown that medium-trust couples are more likely than high- or low-trust couples to use manipulative and coercive power tactics during a conflict interaction (Rempel, Hiller, and Cocivera 2000). Thus, it seems that medium-trust individuals are hesitant to dismiss warning signs that signal the potential for disappointment. In order to avoid making unwarranted positive attributions for their partner's behavior, and running the greater risk of having their hopes undermined, these individuals protect themselves with a risk-avoidant strategy that leads them to adopt more stringent criteria before inferring positive motives for their partner's positive behaviors (Holmes and Rempel 1989). Thus, medium-trust couples may, paradoxically, overemphasize the diagnostic importance of negative events and underestimate the importance of events that could advance their hopes.
As feelings of confidence continue to diminish, people arrive at the point where they no longer expect the events in their relationship to reflect motives of concern and caring. Instead, they are more likely to expect indifference, or even hostility. Low-trust people cannot, with any confidence, embrace residual hopes that their partner is concerned about them or the relationship. Thus, they are likely to confront positive incidents with skepticism, discounting the encouraging implications such events might have for the future of their relationship. Negative events, on the other hand, serve to confirm the belief that confidence in the partner is not warranted—they represent one more piece of data in support of the conclusion that the partner no longer cares.
The sad irony is that, once trust has been betrayed, it may be doubly difficult to restore. Lurking close to the surface of most low-trust relationships is a history of broken promises, unmet expectations, and emotional disappointments. Even if the offending partner "turns over a new leaf" and begins to work at the relationship, it is all too easy for these positive events to be explained away. The reluctance of low-trust individuals to accept their partner's positive behaviors is understandable—they have taken risks and lost. To protect themselves from the danger of drawing unwarranted positive conclusions and to minimize the pain of involvement with an unconcerned partner, low-trust people may attempt to reduce emotional investment in their relationship. Indeed, recent studies indicate that low-trust couples act in ways that minimize the potential for conflict (Rempel, Hiller, and Cocivera 2000). Thus, at least when the issues do not demand a confrontation, the interactions of low-trust couples appear to be characterized by indifference and emotional distance. In such a climate, the potential for rebuilding a trusting relationship represents a daunting prospect.
The scenario is not hopeless, of course, but no one should underestimate the difficulty of rebuilding trust once it has been betrayed. For trust to grow after it has been violated people must resist the natural tendency to jump to harsh conclusions about their partner's motives and character in new situations. Furthermore, people must allow their partner the leeway for occasional unintended missteps. The offending partner, in turn, must make a profound effort to live up to his or her promises of change in ways that clearly signal to the offended partner that these risks are worth taking. To be able to trust, people must take the risk of trusting. By giving their partner a second chance to renew trust in the relationship people risk being wrong, but if they do not try they can never be right.
Trust is a central feature of all human relationships. It begins with our earliest social interactions and has powerful implications for our most intimate relationships throughout our lives. There is still much to learn about the origins of trust, the ways in which trust develops in a specific relationship, the consequences for a relationship when trust breaks down, and the ways in which trust can be rebuilt. However, the study of this important topic has already produced valuable insights. As we continue gain knowledge about trust, the things we learn hold great promise for enriching the quality of our most valued intimate relationships.
See also:Attachment: Couple Relationships; Attachment: Parent-Child Relationships; Commuter Marriages; Family Strengths; Friendship; Infidelity; Intimacy; Love; Relationship Initiation; Relationship Maintenance; Social Exchange Theory
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JOHN K. REMPEL
Trust of science and technology and of the people who conduct research and invent, design, develop, manufacture, operate, maintain, and repair technology is essential to the development of science and technology. When the trust proves unwarranted, however, the result can be disaster in forms varying from harm to health and safety, to persistent distortions of knowledge, to theft of credit or property that cripples cooperation necessary to support the growth of knowledge and development of technology. A deeper question is what it means for science and technology, and the people responsible for them, to be trustworthy.
The Concepts of Trust and Trustworthiness
Although Sissela Bok (1978) discussed trust as a moral resource beginning in the 1970s, the question of the morality of trust relationships—the conditions under which, from a moral point view, one ought to trust—was not explicitly discussed until a decade later by Annette Baier (1986). Two earlier essays were important in laying the foundation for this major turn in the discussion. Ian Hacking (1984) provided a devastating assessment of game theoretic approaches to solving problems of trust, such as the Prisoner's Dilemma. Baier (1985) herself previously had argued for broadening the focus in ethics from obligations and moral rules to the subject of whom one ought, as a moral matter, to trust and when. As Kathryn Addelson (1994) points out, Baier's change of focus establishes a general perspective on ethical legitimacy that is shared by all, rather than privileging the perspective of those who make, instill, and enforce moral rules.
As Baier (1986) argues, trust involves both confidence and reliance. If people lack other options, they may continue to rely on something, such as the water supply, even when they no longer trust it. Similarly, people may have confidence in something, or confidence in their expectations concerning it, without relying on it. To rely only where one can trust is a fortunate circumstance.
Baier's general account of the morality of trust illuminates the strong relation between the trustworthy and the true. A trust relationship, according to Baier, is decent insofar as it stands the test of disclosure of the premises of each party's trust. For example, if one party trusts the other to perform reliably only because the truster believes the trusted is too timid or unimaginative to do otherwise, disclosure of these premises will give the trusted party an incentive to prove the truster wrong. Similarly if the trusted party fulfills the truster's expectations not through trustworthiness but only through fear of detection and punishment, disclosure of these premises will lead the truster to expect that the trusted would defect, if able to do so undetected.
Although explicit discussion of moral trustworthiness is relatively recent, both professional ethics and the philosophy of technology have given considerable attention to the concept of (prospective) responsibility. Because being trustworthy is key to acting responsibly in a professional capacity, or to being responsible in the virtue, as contrasted with causal, sense, the literature on responsibility provides at least an implicit discussion of many aspects of trustworthiness.
Niklas Luhmann (1979) has shown how trust simplifies human life by endowing some expectations with assurance. It is prohibitively difficult and time-consuming to consider all possible disappointments, defections, and betrayals by those persons or circumstances on which one relies; all possible consequences of those disappointments; and all actions that might prevent those disappointments or change their effect. Trust reduces that burden. In a later work, Luhmann urged a different distinction between confidence and trust: that trust be used only when the truster has considered the alternatives to trusting. Luhmann's discussion of the distinction between trust and confidence highlights the element of risk in trusting. Risk or vulnerability does characterize situations in which trust is necessary, in contrast to those in which one's control of the situation makes trust unnecessary. However the notion of reliance in Baier's definition of trust as confident reliance does capture the sense of vulnerability. One's vulnerability in reliance does not require consideration of the alternatives to such reliance.
The risk taken in trusting does leave the truster liable to disappointment (or worse), whether that trust is of persons, objects, or circumstances (such as, that the temperature will go below freezing overnight). However only if one's trust is in agents capable of recognizing intention, can one be let down. Furthermore, although one may disappoint without intending to, one must at least be aware of behaving in the way that turns out to disappoint in order to be said to have let someone down. So if Alice does not know she is waking Bob each morning by closing the garage door, she cannot be said to have let him down by not waking him today. Because science and technology do not arise except through human intervention, the focus of this entry is on trust in people, individually or acting as a group.
For the professionals behind science and technology to behave in a responsible or trustworthy manner requires both technical competence and moral concern—specifically a concern to achieve a good outcome in the matter covered, which is sometimes called their fiduciary responsibility, the responsibility of a person in a position of trust. The moral and technical components of professional responsibility led sociologist Bernard Barber (1983) to speak of these as two senses of trust. However if the public is to trust the members of the science and engineering professions, it is not in two senses. Rather the public trusts the professional to achieve some outcome for which both competence and concern are required. For researchers, the outcome typically centers on the accurate report of the methods and results of research, a report that fairly acknowledges any contributions of others. For engineers, it typically centers on the provision of a technology that performs its function and does not pose unnecessary threats to safety.
For engineers the competence and concern are engineering competence and concern for such social goods as public safety, confidentiality of information, fairness in competition, the public understanding of science and technology, protection of the environment, and the quality and performance of the technology in question. Engineering codes of ethics enjoin engineers not to take on work beyond their competence, so at least for engineers technically incompetent performance is also recognized to be a moral failing. In contrast, researcher investigators generally do not regard undertaking research beyond one's competence as a moral failing, although certain incompetencies, such as those that result in harm to experimental subjects or to public health, might be.
Because the exercise of professional responsibility characteristically draws on a body of specialized knowledge that is brought to bear on the promotion or preservation of another's welfare, to trust a person to fulfill a professional responsibility is to trust that professional to perform in a way that someone outside of the profession cannot entirely specify, predict, or often even recognize. The point is not captured in the frequent suggestion that trust is necessary because the trusting party cannot control or monitor the trusted party's performance. It would do the layperson little good to have full knowledge of the plans for a medical device or an experiment, or even the ability to guide the actions of the science and engineering professionals. Although laypeople might be able to recognize some acts of gross negligence, they would not know the implications of most of what they saw or how to improve the professional's performance. For this reason, from the point of view of the public, there are no good alternatives to having trustworthy professionals. In her 2001 Gifford Lectures, Onora O'Neill (2002) makes the same point that nothing can guarantee trustworthiness and emphasizes the burden that what she calls the culture of suspicion places on officials and professionals, such as medical researchers.
The question of whether scientists and engineers are responsible for the ultimate uses of the knowledge and technology they create is sometimes called the end use question. Caroline Whitbeck (1998) has argued that for scientists and engineers to be entrusted to prevent evil end uses of their products and discoveries those uses must be intended as well as foreseeable, because, for example, it would be impossible to forego the creation of all the many useful tools from hammers to pokers, to kitchen knives to hatchets that one can foresee can also be used as weapons.
It is arguably unreasonable to say that scientists and engineers are untrustworthy (more specifically, negligent), if they fail to consider unforeseeable uses and consequences. Indeed National Academy of Engineering President William Wulf (2004) draws attention to technological systems, such as computer systems, that are so complex that failures in them are inherently unpredictable, so it would not be possible for engineers to predict them. Criteria for trustworthy behavior or policies regarding such systems have yet to be settled.
The application of standards of professional responsibility in science and engineering is complicated by the fact that not all scientific and engineering professions have the same developed understanding of themselves as professions. Although U.S. engineering societies formulated ethical codes and guidelines from the early decades of the 1900s, attention to the professional responsibilities of research investigators has only received broad attention since the mid-1980s. However trust and trustworthiness became a central theme in those discussions in the 1990s (Whitbeck 2004). An international perspective provides even greater variation although the so-called Washington Accord, an agreement that recognizes equivalency of accredited engineering education programs in participating countries, is leading to more uniformity.
Some questions about the ethical implications of science and technology are policy questions, sometimes called macro issues. Although people can and do praise and blame particular individuals for formulating, adopting, implementing, or carrying out policies regarding science and technology, in a democracy these are societal decisions. Policy decisions run the gamut from decisions about what research and development should be given public support or even legally permitted, to what can be used as research material (for example, embryonic stem cells), to how and when to prevent or clean up toxic and nuclear contamination, to whether and how to control the social consequences of new technologies, such as privacy invasions on the Internet.
Typically such policy questions must be decided under conditions of significant uncertainty. Often the nature of the possible outcomes as well as the likelihood of various outcomes are unknown. Such uncertainties lead to misgivings about the pace of innovation and discovery. Technology is said to create new options, but technological advance also forecloses options. For example, after the introduction of the automobile, one could no longer choose to keep a horse and buggy in the city. Furthermore its consequences may contradict expectations. For example, historian Ruth Cowan (1983) found that household appliances did not reduce housework but raised the standards for that work. The relationship between science and technology and the societies in which they develop is extremely complex. Therefore the extent to which the frequent criticism of modern life in technologically developed societies is most properly directed at science and technology (or at least the pace of their development); at social factors, such as market forces affecting their development; or at human tendencies to use and abuse power in general is likely to continue to be disputed.
SEE ALSO Virtue Ethics.
Addelson, Kathryn. (1994). Moral Passages: Notes toward a Collectivist Ethics. New York: Routledge. Addelson presents a collectivist account of responsibility and ethics.
Baier, Annette. (1986). "Trust and Antitrust." Ethics 96: 232–260. Reprinted in Baier's Moral Prejudices. Cambridge, MA: Harvard University Press, 1994. Baier discusses the subject of trust and the curious neglect of this subject in most of moral philosophy. She gives an account of what it is to trust and a partial account of when it is immoral to expect or fulfill trust.
Barber, Bernard. (1983). The Logic and Limits of Trust. New Brunswick, NJ: Rutgers University Press. This work examines trust in various contexts including professional practice and business. As a sociologist, Barber delineates professions from non-professions in terms of their social status, rather than in terms of their claim to provide ethical guidelines for their practice.
Bok, Sissela. (1978). Lying. New York: Vintage Books. Bok addresses the subject of trust, one of the few philosophers to do so before Baier and provides a model of what was to become known as practical (as contrasted with "applied") ethics.
Cowan, Ruth Schwartz. (1983). More Work for Mother: The Ironies of Household Technology from the Open Hearth to the Microwave. New York: Basic Books. Cowan's history of household technology demonstrates supposed labor-saving household technology raised the standards for housework, rather than reducing the time spent performing it.
Hacking, Ian. (1984). "Winner Take Less: A Review of The Evolution of Cooperation by Robert Axelrod." New York Review of Books, June 28, pp. 17–21. Hacking praises The Evolution of Cooperation and criticizes twentieth-century modes of philosophizing that seeks to force-fit human life to logical models that fail to do justice to notions such as cooperation.
Ladd, John. (1979). "Legalism and Medical Ethics." In Contemporary Issues in Biomedical Ethics, ed. John W. Davis, Barry Hoffmaster, and Sarah Shorten. Clifton, NJ: Humana Press. Ladd here develops his philosophical position on the primacy of the notion of responsibility in practical ethics and the secondary status of rights and obligations/duties.
Luhmann, Niklas. (1979). Trust and Power. New York: John Wiley & Sons. Luhman's principle work on trust examines the relationship between trust and confidence and discusses the function of trust in human life.
O'Neill, Onora. (2002). A Question of Trust: 2002 BBC Reith Lectures. Cambridge, UK: Cambridge University Press. O'Neill examines what she regards as the current climate of suspicion and argues for a better appreciation of the evidence of trustworthiness.
Whitbeck, Caroline. (1998). Ethics in Engineering Practice and Research. NewYork: Cambridge University Press. Examines the notions of responsibility, trust, and trustworthiness in engineering and science.
Whitbeck, Caroline. (2004). "Trust and the Future of Research." Physics Today 57(11): 48–53.
Wulf, William A. (2004). "Keynote Address." In Emerging Technologies and Ethical Issues in Engineering: Papers from a Workshop, October 14–15, 2003. Washington, DC: National Academies Press. Wulf, President of the National Academy of Engineering, reviews the accomplishments of engineers in the twentieth century and their challenges in twenty-first century, including the moral and ethical responsibilities associated with the impact of engineering on society.
Washington Accord. Available from http://www.washingtonaccord.org. Internet site of the Washington Accord.
Trust, the general sense of well-being in relation to one’s self and toward others, is an essential attribute of human character as well as of interpersonal interaction. The attainment of a sense of trust has long been thought by ego psychologists to be the first human developmental task and is based largely on the infant’s growing expectation that the mothering figure will become a constant source of nurturing and satisfaction in the individual’s life. Good nurturing thus disposes the individual to anticipate positive encounters with the environment and with other persons.
There is common agreement that trust is an essential factor in successful social environments and interactions. Persons need to feel secure in their expectations for good outcomes as they go about their daily lives. For instance, they need to assume that an elevator is functioning normally, that they will be understood linguistically if they cry for help, and that a medical professional will try to do them good rather than harm. So important is what could be called “background trust” that experimentally breaching it, as sociologist Harold Garfinkel has shown, by speaking nonsense when a person asks for directions or help, causes subjects to become extremely angry and anxious. If one has a flat tire, and the experimenter replies to a call for help by asking what a tire is, rage on the subject’s part is sure to follow. Hence there is strong reason to think that trust is an interaction imperative, up to and including dealing with one’s enemies, as the history of the cold war suggests.
The greater the degree of trust in social transactions, it is believed, the more optimal are the satisfactions for participants. Relations between members of households and kin networks, for instance, are typically characterized as high in trust, and it is notable how solutions to the most difficult problems of human dependency, such as infancy, old age, and disability, are undertaken at great sacrifice within their confines. Trustworthy expectations also flow through social networks such that they are an important source of economic opportunities such as job finding and job getting.
Trust and exchange, used here in the broadest sense, are intimately related. Exchange creates trust, and trust facilitates exchange. Among members of small-scale societies, gift giving creates the necessity of reciprocity and generates in the giver the expectation of being a receiver and thus a beneficiary of a gift in a future transaction. Bonds of mutual expectation are formed and can often support the exchange of purely economic goods, as the classic investigation of anthropologist Bronislaw Malinowski (1884–1942) among the Trobriand Islanders of the Pacific a century ago showed.
The depth of trust among participants also affects exchanges in markets. At minimum, most economists recognize trust as a helpful externality: that is, trust is a noneconomic element that improves economic efficiency by increasing the speed of transaction and limiting the need for costly conditions to ensure mutual compliance. Its absence increases economic risk and may foster opportunism among buyers and sellers that limits the scope of market transactions. Lack of trust between producers and suppliers has been argued as a primary motivation for the growth of large, vertically integrated industrial firms. If firms cannot trust their suppliers to deliver quality goods in a timely and cost-effective fashion, they reason it is better to produce the goods internally or purchase the supplying firm outright.
On the other hand, trust, it has been argued, can be misplaced. Exclusive trust in kin or in personal and social networks often signifies lack of trust in other persons, networks, and institutions outside their purview. This diffidence toward others can create economic and political troubles. Politically, Robert D. Putnam has argued, for instance, that trust is an indispensable good for building a successful civil society and, by implication, a functioning democracy. In a world economy dominated by large corporations, the temporary advantages afforded by a high degree of internal trust found among families and kin groups that stimulate high levels of personal dedication, income pooling, and personal sacrifice can become overwhelmed by such problems as small firm size, stunted organizational growth, and lack of access to capital markets for expansion. If mistrust in the face of outsiders in markets leads to out-and-out hostility, deviant economic combinations, such as the mafia and what Max Weber (1864–1920) called “pariah capitalism,” can arise. A market where neither the expectation nor the reality of fair treatment, both reliant on background trust, is met tends to founder and shrink. Moreover, exploitation of others outside the bounds of exclusive trust becomes highly likely.
Exclusive bonds of trust need not be overtly hostile to be exploitative. Cartels and trusts, historic fetters on economic efficiency, are precisely the products of relations of trust developed among nominally competing firms. Through the reciprocal exchange of information, favors, and market opportunities, they effectively charge a tax on their transactions with other buyers and sellers outside their circle.
As world society and the world economy become more integrated, globalized in a word, the need for, as well as evidence of, a more generalized interpersonal trust have been noted. Mass travel and migration, unprecedented collective reliance on large bureaucratic organizations for all kinds of commodities and services, and the rise of communication and information technologies necessitate increased contact with impersonal, anonymous persons, providers, and interlocutors. The sense of well-being and the expectation of gratification embodied in the concept of trust take on even greater importance. There are many instances in which this sense of globalized background trust can be observed, from the casual use of the credit card to the ease with which one can trade, borrow, and travel in ever grander geographical and social spaces. Inside large organizations, the same expectations of good interactions are created through rewards and training, though employee trust can be lost easily through the abuses of hierarchy and corporate economic power.
SEE ALSO Reciprocity
Arrow, Kenneth. 1974. The Limits of Organization. New York: Norton.
Erikson, Erik. 1963. Childhood and Society. 2nd ed. New York: Norton.
Fukuyama, Francis. 1995. Trust: The Social Virtues and the Creation of Prosperity. New York: Free Press.
Garfinkel, Harold.  1984. Studies in Ethnomethodology. Cambridge, U.K.: Polity Press.
Giddens, Anthony. 1990. The Consequences of Modernity. Stanford, CA: Stanford University Press.
Granovetter, Mark. 1995. Getting a Job: A Study of Contacts and Careers. 2nd ed. Chicago: University of Chicago Press.
Malinowski, Bronislaw.  1984. Argonauts of the Western Pacific. Prospect Heights, IL: Waveland.
Putnam, Robert D., Robert Leonardi, and Raffaella Y. Nanetti. 1993. Making Democracy Work. Princeton, NJ: Princeton University Press.
Weber, Max.  2001. The Protestant Ethic and the Spirit of Capitalism. Trans. Talcott Parsons. New York: Routledge.
trust / trəst/ • n. 1. firm belief in the reliability, truth, ability, or strength of someone or something: relations have to be built on trust they have been able to win the trust of the others. ∎ acceptance of the truth of a statement without evidence or investigation: I used only primary sources, taking nothing on trust. ∎ the state of being responsible for someone or something: a man in a position of trust. ∎ poetic/lit. a person or duty for which one has responsibility: rulership is a trust from God. ∎ poetic/lit. a hope or expectation: all the great trusts of womanhood. 2. Law confidence placed in a person by making that person the nominal owner of property to be held or used for the benefit of one or more others. ∎ an arrangement whereby property is held in such a way: a trust was set up | the property is to be held in trust for his son. 3. a body of trustees. ∎ an organization or company managed by trustees: a charitable trust | [in names] the National Trust for Historic Preservation. ∎ dated a large company that has or attempts to gain monopolistic control of a market. 4. W. Indian or archaic commercial credit: my master lived on trust at an alehouse. • v. [tr.] 1. believe in the reliability, truth, ability, or strength of: I should never have trusted her | [tr.] he can be trusted to carry out an impartial investigation | [as adj.] (trusted) a trusted adviser. ∎ (trust someone with) allow someone to have, use, or look after (someone or something of importance or value) with confidence: I'd trust you with my life. ∎ (trust someone/something to) commit (someone or something) to the safekeeping of: they don't like to trust their money to anyone outside the family. ∎ have confidence; hope (used as a polite formula in conversation): I trust that you have enjoyed this book. ∎ [intr.] have faith or confidence: she trusted in the powers of justice. ∎ [intr.] (trust to) place reliance on (luck, fate, or something else over which one has little control): trusting to the cover of night, I ventured out. 2. chiefly archaic allow credit to (a customer). PHRASES: not trust someone as far as one can throw them inf. not trust or hardly trust a particular person at all. trust someone to —— it is characteristic or predictable for someone to act in the specified way: trust Sam to have all the inside information.DERIVATIVES: trust·a·ble adj. trust·er n. ORIGIN: Middle English: from Old Norse traust, from traustr ‘strong’; the verb from Old Norse treysta, assimilated to the noun.
trust, in law, arrangement whereby property legally owned by one person is administered for the benefit of another. Three parties are ordinarily needed for the relation to arise: the settlor, who bequeaths or deeds the property for another's benefit; the trustee, in whose hands the control of the property is vested and who receives a fee fixed by law; and the beneficiary, for whose use the proceeds of the property are to be applied. In some cases the settlor may be the trustee or beneficiary, but it is indispensable that the trustee (legal owner) and the beneficiary (equitable owner) be different persons. The trustee's duty is to make the capital or earnings available to the beneficiary in the manner prescribed by the settlor and to manage the property prudently and honestly. The beneficiary may bring suit if this duty is breached. In modern times banks and trust companies, with their special facilities for handling investments, are often named the trustees of substantial properties.
Business Applications of Trusts
The arrangement at which the Sherman Antitrust Act was directed was a business application of the trust form. The Standard Oil Company, for example, induced stockholders in various enterprises to assign their stock to a board of trustees and to receive dividend-bearing trust certificates in return. The board was thus able to manage simultaneously enterprises that many believed should have been in active competition. Soon most business combinations in restraint of trade came to be called trusts, whether in the legal form of a trust or otherwise.
A horizontal trust is a combination of corporations engaged in the same line of business. A vertical trust is an organization that controls all or part of a series of operations extending from the procuring of the raw materials to the retailing of the finished products. In Europe the term cartel is applied to a monopoly or trust, but the term is broader in that it may have international scope, and there, as in the United States, it may be either vertical or horizontal.
Business trusts have been opposed as monopolies, and laws have been enacted to prohibit or control them. They have been defended as reducing costs through large-scale operations and avoiding the expenses of competition. In the United States trusts grew rapidly from 1880, and by 1905 most of the important mergers in American industry had been formed. The Sherman Antitrust Act, passed by Congress in 1890, made illegal all "agreements in restraint of trade" and all "attempts to monopolize" industry; but the law was not vigorously enforced. The Clayton Antitrust Act (1914) was designed to stop various practices of "unfair" competition, and the Federal Trade Commission was given power to issue "cease and desist" orders when violations were found.
See A. A. Berle, Jr., and G. C. Means, The Modern Corporation and Private Property (1932, rev. ed. 1969); W. Berge, Cartels (1944); R. R. B. Powell, Cases and Materials on Trusts and Wills (1960); M. Handler, Cases and Materials on Trade Regulations (4th ed. 1967); A. Hunter, ed., Monopoly and Competition (1969).
So vb. have confidence (in). XIII. of obscure history; early ME. forms of sb., adj., and vb. are trust(e) (beside trüst(e), trist(e), trest(e)), corr. to a possible OE. *tryst, *trystan, and trost(e) (presumably — ON. traust help, support, confidence, traustr firm, strong, confident; parallel forms are MLG., MDu. trost (Du. troost), (O)HG. trōst consolation, Goth. trausti covenant), the formation being ult. that of an abstr. noun on the base *tru- of TRUE, TROW. Hence trusty (-Y1) XIII, trustee (-EE1) XVII.
put your trust in God, and keep your powder dry proverbial saying, mid 19th century, combining spiritual exhortation with the practical measure of making sure that one's gunpowder is kept serviceable. The saying is attributed to Oliver Cromwell, but not traced to a contemporary source. The earliest recorded instance to date is found in the poem ‘Oliver's Advice’ by the Anglo-Irish Valentine Blacker (1728–1823), in which the refrain runs, ‘Put your trust in God, my boys, and keep your powder dry.’
Trust ★★ 1991 (R)
An obnoxious girl, tossed out by her family after becoming pregnant, forms a loving bond with a strange, possibly deranged guy from an abusive household. Similar in style and theme to Hartley's “The Unbelievable Truth”—a peculiar sardonic comedy/drama not for every taste. 107m/C VHS . Adrienne Shelly, Martin Donovan, Merritt Nelson, Edie Falco, John MacKay, Marko Hunt; D: Hal Hartley; W: Hal Hartley; C: Michael Spiller; M: Phil Reed. Sundance ‘91: Screenplay.