An analysis of the role of the protector in trusts

Abstract

The appointment of a diligent and professional protector can have a number of advantages, particularly in the area of disputes where the protector can play an important supervisory role alongside the trustees and beneficiaries and to facilitate any areas of disagreement and ensure a flow of communication and reporting between all the parties involved. Though gaining popularity in recent years, there is still a scarcity of judgments concerning the protector worldwide, In the light of this, I will analyze existing commentaries and available judgments, in the hope of identifying the role of the protector and drawing analogies for application with respect to protectors of Maltese trusts. The first chapter is an introduction to the subject whereby amongst others things, I will seek to define the term: 'protector'. I will delve into the history and try to underline potential differences between the role of the protector and that of the enforcer with the hope of understanding the role of the protector better by so doing. The second chapter will deal with the roles and powers surrounding the protector. I will define the powers and the limitation of same, with the purpose of delineating as much as possible the role of this power-holder in a practical way. The third chapter is the core of the discussion on the subject of the protector and it deals with whether the powers of the protector are essentially fiduciary or personal or both and the implications of each type of powers. Furthermore the chapter will also discuss and rebut the agency theory which conflicts with the fiduciary/personal nature of the powers of the protector, and views the protector more as an agent of the settlor. The fourth chapter deals with the trust-fiduciary relationship and essentially how their powers are at times intertwined. This chapter will also explore the possibility of court recourse in relation to the powers of the protector. vii The concluding chapter aims to focus on drafting issued and solutions with respect to the protector. Indeed careful drafting and an appropriate grasp by the practitioner of the roles of the protector will be the key to successful use of any protectorship office.