Traditionally, the main parties to a trust were the settlor, the trustee and the beneficiaries. However, in recent years, the appointment of Trust Protectors has become increasingly prevalent, particularly in offshore trust structures. Indeed, some jurisdictions, including BVI, the Cook Islands and several US states, have now made legislative provision for the office of Protector.
1. What Is A Protector?
The Trust Protector is an individual, committee or corporate entity appointed to represent the interests of the settlor in the administration and management of the Trust. The original Trust Protector is generally selected by the settlor and appointed pursuant to the terms of the Trust Deed or a specific Deed of Appointment. A settlor will typically appoint a trusted professional advisor, relative or friend.
2. What Is The Role Of A Protector?
The role of the Protector and the extent of the powers granted to him shall depend on the wishes of the settlor and should be carefully detailed in the instrument appointing him. Care should be taken to ensure that the powers conferred are not so broad as to render the Protector a ‘de facto’ trustee. Although the Protector fulfils a supervisory role, he must not be seen to usurp the authority of the trustees.
3. What Are The Powers Of A Protector?
The powers conferred upon a Protector may vary from trust to trust and may include some of the following powers;
- To appoint, remove or replace the Trustees;
- To approve or disapprove amendments or modifications to the trust deed;
- To approve or disapprove the addition or removal of beneficiaries;
- To approve or disapprove the appointment of advisors to or agents of the Trust;
- To approve or disapprove distributions to the beneficiaries;
- To change the situs or governing law of the Trust;
- To name a successor Protector;
- To terminate or resettle the trust; and
- To resolve disputes arising between co-trustees or between the trustee and the beneficiaries.
As mentioned above, care should be taken when considering which of the above powers to grant the Protector. The powers conferred should not be so broad as to give rise to an inference that the Protector is usurping the role of Trustee.
4. What Are The Rights Of A Protector?
In order to exercise the conferred powers in an effective manner, certain ancillary rights should be granted to the Protector. These could include the right;
- To receive periodic reports from the trustees;
- To have access to the trust accounts;
- To nominate or appoint independent advisors to the trust;
- To petition the Court for instructions where appropriate; and
- To receive reasonable remuneration.
5. Why Appoint A Protector?
It is often submitted that the appointment of a Trust Protector complicates the administration of the trust, renders it more expensive and causes delays. Notwithstanding the foregoing, Trust Protectors are becoming increasingly common, and may be said to serve an important function in enforcing the terms of the trust, safeguarding the trust against trustee abuse and ensuring compliance with the original intentions of the settlor.