The importance of choosing the right trust protector

A trust protector can provide an important check and balance on a trustee’s exercise of key powers. Depending on the trust instrument, a protector’s functions may range from the power to appoint and remove trustees to a requirement to consent to certain trustee decisions. Used well, the role can enhance governance, help preserve the settlor’s intent and provide comfort to beneficiaries.

Consent powers: a wider role unless the trust says otherwise

Where a protector’s consent is required, there has long been debate about what that consent involves. Is the protector’s role limited to ensuring the trustees have acted properly and within the scope of their powers, or should the protector go further and form an independent view on whether the proposed step is the right one? In A and others v C and others [2026] UKPC 11, the Privy Council confirmed that, unless the trust instrument provides otherwise, a consent power is generally to be understood in its wider sense: the protector should consider the merits of the proposed exercise of the power, even if the trustees are permitted to exercise the power in that way.

Why the decision matters in practice

The practical implication is that a protector can, in effect, prevent trustees from taking steps that require consent. Consider a discretionary trust established for the benefit of a settlor’s children, where a family member is appointed as protector. If that protector later falls out with one beneficiary, they may refuse to consent to future distributions or other decisions that would benefit that individual. While such conduct may amount to a breach of fiduciary duty, resolving the issue can be time-consuming and costly, and may require court involvement – particularly as it is often difficult to remove a protector from office.

What this means for settlors, trustees and advisers

The decision reinforces the importance of appointing the right individual (or entity) as protector and of being clear in the trust documentation about what the role is intended to achieve. In many cases, independence and impartiality are critical – particularly where the protector’s consent is required for distributions, changes of governing law, trustee appointments or other high-impact decisions. This may point towards the use of a professional protector, or at least the inclusion of safeguards such as clear decision-making criteria, defined conflicts provisions and a practical removal mechanism. Alternatively, where the settlor’s intention is that the protector acts only as a supervisory check, the trust instrument should be drafted to limit the consent power accordingly.

How Ocorian can help

Ocorian has experience acting as a trust protector across a range of structures and jurisdictions. We can help clients implement a protector framework that supports effective oversight without creating unnecessary friction in day-to-day administration.

In particular, we can:

• act as an independent, professional protector, helping to promote impartial decision-making;

• work with settlors and advisers to clarify the intended scope of consent powers and any reserved matters;

• apply a consistent governance process when considering requests for consent, including documenting rationale where appropriate;

• help identify and manage conflicts of interest and other sensitivities that can arise in family structures;

• coordinate efficiently with trustees and advisers to support timely administration while maintaining proper oversight.

If you are establishing a new trust, reviewing an existing protector appointment, or considering changes to reserved powers and consent provisions, we would be happy to discuss how Ocorian can support your objectives.