Alexander A Bove, Jr., Bove & Langa, P.C., has made available for download his paper, “A Protector by Any Other Name…” The abstract reads,
An idea has developed in the domestic and international community of trust law that has, in a sense, revolutionized the drafting and administration of trusts. It allows the trust to provide for the addition of a party, other than another trustee, who would have the authority to take independent action with respect to the administration and even with respect to the dispositive provisions of the trust. That party is called “the trust protector” (the term may include trust advisor, trust guardian, trust enforcer, and the like). The key feature of the position is that the protector may be granted powers over the trust, which may be basic or very extensive powers, and such powers are generally superior to those of the trustee. This places the protector in a position where, by the exercise of his powers, he can cause the trust to adjust to unforeseen changes or new conditions without the need for court action.
Unfortunately, a substantial segment of the legal community, as well as the legislative bodies of a number of jurisdictions, have taken a position that seriously mischaracterizes the role of the protector, one that is inconsistent with basic trust law and the numerous reported cases, and which results in a self-contradiction of the role. The mischaracterization is revealed in the form of a hasty conclusion that the protector is not a fiduciary, or that he may be declared in the trust not to be a fiduciary, and that the powers granted him under the trust may be declared to be personal powers, whether or not such is the case, and thus has he would have no liability for his actions or inactions while serving as protector. This paper takes the firm position that, with only limited exception, the role of the protector is a fiduciary one, imposing on the protector a duty to act in the best interests of the trust and the beneficiaries.
Click here to download the full piece: A Protector by Any Other Name… by Alexander A Bove, Jr.
Posted by Allison Trupp, Associate Editor, Wealth Strategies Journal