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Protecting a trust

16 February2016

Article first published by Guernsey Finance in February 2016

Issues relevant to trust protectors have become a relatively hot topic offshore and entire books have, and no doubt will, be written on protectors. In light of an increasing number of protector disputes, Appleby’s Adam Cole takes a high-level look at the nature of a protector’s role and the relevant factors to consider should relations with a protector become strained.

In essence the appointment of a protector provides a means of monitoring the actions of a trustee and checking that appropriate action is taken to preserve the trust fund. In order to carry out such functions, protectors may commonly be given “positive” powers such as the power to appoint and remove trustees and “negative” powers such as the right to withhold consent to capital distributions to beneficiaries. The role of a protector can, therefore, be a significant one in the context of the administration of a trust.

Protectors may be appointed to act in a fiduciary or non-fiduciary capacity. Where the settlor’s intention in this regard is not clear, one will need to look at the nature of the particular powers given. As a rule of thumb, protectors will commonly have fiduciary obligations even if this is not expressly stated in the trust documentation. This is not always the case, however, and where, for example, the protector is also a beneficiary that expectation may be reversed. In any event we have seen a number of cases where the elements that may or may not point to a fiduciary role are in contradiction to one another and the position can very easily become one of nuance.

Protectors can play an important role in ensuring dialogue between the parties that are interested in a trust. When the office works well, it can be a successful channel for maintaining harmony in the midst of competing interests or views. This can be particularly important, albeit potentially more difficult, following the death of a settlor.

 

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