The author considers the changing role of “protectors” as applying to trusts in a variety of jurisdictions.

The following article addresses the role of the “protector” – the person who oversees trustees. The role of such a person is changing, and those in the trust and estate planning and advisory space must be aware of what is happening. The article is from Danielle Cahill, who is a partner in the private wealth disputes group for Hugh James, a law firm. Cahill (pictured below the article) was previously published here. 

The editors are pleased to share these important details with readers; the usual editorial disclaimers apply to views of guest contributors. To comment, email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com

For generations, the protector has been treated as a benevolent figurehead: a reassuring presence written into trust deeds to “keep an eye on the trustees.” Historically, protectors were rarely expected to intervene or justify their actions, and they were often treated more as custodians of settlor intent than anything else. However, the landscape is now changing. 

In courts across the world, such as England and Wales, Jersey, Guernsey and the Cayman Islands, judges are being asked to grapple with the reality that modern protectors can wield decisive power to block distributions to vulnerable beneficiaries, veto commercial restructurings, remove trustees mid-dispute, or, in the most extreme cases, paralyse the trust entirely. 

Consequently, protectors have become a focal point of litigation, and the courts have shown a growing willingness to scrutinise their role. 

1. From figurehead to power-broker: fiduciary characterisation of protector powers
The most important change in protector jurisprudence has been the courts’ increasing willingness to characterise core protector powers as fiduciary in nature.

Jersey has been at the vanguard of this development. In Representation of Jasmine Trustees Ltd (1), the Royal Court emphasised that a power to appoint or remove trustees (and, by extension, protectors) should generally be treated as fiduciary, unless the trust deed provides otherwise. 

In The matter of the A and B Trusts (2), a protector was removed under the Letterstedt v Broers principle; the protector had not acted dishonestly, but he had aligned himself with one faction of a divided family and misconceived his role as the enforcer of the settlor’s subjective wishes. His continuation in office was, therefore, deemed to be detrimental to the proper execution of the trusts. The court made it clear – in terms that will give some protectors pause for thought – that misconduct of a protector is not a prerequisite for removal. What matters is whether a protector’s continuation in office is inimical to the welfare of the beneficiaries and the proper administration of the trust.

Guernsey courts have also reached similar conclusions. In the matter of the K Trust (3), the court described the protectorship as a fiduciary office and ordered removal of a protector following an irretrievable breakdown of trust and confidence. Again, the court placed emphasis on the effective administration of the trust, rather than the moral culpability of the protector.

2. Cayman and England: construction, control and collapse
Looking across the ocean, Cayman Islands jurisprudence traditionally emphasised construction of the trust instrument, as illustrated by Re the Circle Trust (4). However, more recent cases show a growing willingness to closely examine how protectors choose to exercise their powers.

That scrutiny is evident in the Matter of the Poulton Family Trust (5). The Grand Court set aside drastic decisions taken by a settlor-protector, including exclusions of children and steps towards collapsing the trust, based on undue influence. Although the case turned on undue influence, as opposed to how a protector’s powers might be classified, it serves to demonstrate the risks inherent in concentrating decisive powers in a single individual whose judgment or independence may be compromised.

In England and Wales, the consequences of excessive protectoral power were laid bare in JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev (6). The settlor-protector retained such sweeping personal powers that the court concluded that he had not genuinely divested himself of control over the assets. Pugachev remains a stark warning: where retained powers cross the line from oversight into control, the court may conclude that there was never meaningful divestment at all. 

The bottom line here is that the protector structure cannot be used as a veneer for ownership.

3. Protector consent powers: deference or independent judgment?
One of the most actively contested areas of protector law concerns the nature of consent powers. Is the protector merely checking that the trustees’ decision falls within a reasonable range, or are they required to exercise an independent discretion of their own?

The Jersey Royal Court addressed this directly in the Matter of the Piedmont Trust and Riviera Trust (7), rejecting the notion that protector consent is a mere rationality review. The Court held that “consent” is a genuine discretion, albeit one that must be exercised in a manner subordinate to, and not duplicative of, the trustees’ decision-making role. Importantly, the existence of fiduciary obligations does not confine protectors to a purely supervisory role; their duties are equally consistent with the exercise of an independent evaluative judgement.

That approach stands in contrast to the narrower, supervisory model adopted by the Supreme Court of Bermuda in Re the X Trusts (8), where consent was treated as a rationality safeguard rather than an independent evaluative function.

This divergence is important; it reflects two fundamentally different conceptions of the protector’s role. On one view, exemplified by Re the X Trusts, the protector operates as a supervisory “guardian,” ensuring that trustees remain within the bounds of rational decision-making. On the other, as articulated in Piedmont, the protector assumes a more substantive governance function, exercising an independent discretion alongside the trustees. 

This distinction affects how protectors approach their role, how trustees frame their decisions, and how courts resolve deadlock. As the Privy Council observed in A and others v C and others (9), a protector confined to policing legality alone would add little practical value to a trust, particularly given that professional trustees take their duties to act lawfully and to take and follow appropriate advice very seriously. Ultimately, the co-existence of these differing perspectives on the role of protectors around the world brings us back to prioritising careful drafting of trust documentation: if a settlor intends to confine a protector to a purely supervisory role, that limitation must be made explicit.

Whilst earlier authorities appeared to present a binary choice between supervisory and evaluative models, that position has now been clarified by the Privy Council. In A and others v C and others (10), the Privy Council cautioned against rigid characterisation, emphasising that the scope of a protector’s powers must be derived from the trust instrument and its context, and that silence does not justify confining protectors to a purely supervisory or legal-based function.

4. Removal without wrongdoing: dysfunction as a sufficient trigger
One of the most striking features of the court’s approach to a protector’s role, is a willingness to remove protectors without giving a direct finding of fault. Across Jersey, Guernsey and Cayman, the guiding principle is now well established: if the protector’s continuation in office obstructs the proper administration of the trust, it is possible that removal is justified.

For contentious practitioners, this has significant practical implications. Protectors who entrench themselves, align with particular beneficiaries, or treat their role as personal authority rather than fiduciary oversight are increasingly vulnerable to challenge. The courts have shown little appetite for indulgence where trust administration is suffering.

5. Capacity: the most dangerous and neglected risk
If there is one issue that repeatedly gives rise to real-world crises, it is protector incapacity.

Many trust deeds make protector consent a condition precedent to trustee action, yet they often remain silent on what happens if the protector loses capacity. What this means in practice is that when a protector does lose capacity, the trust can become effectively unworkable at the very moment that decisive action is required: distributions cannot be made, trustees cannot be replaced, and urgent decisions grind to a halt. While most jurisdictions provide mechanisms for courts to intervene, and for protectors to be replaced, such solutions are by their very nature reactive, and bringing a claim for removal often entails a period of uncertainty. By the time relief is obtained, the commercial opportunity, or a family’s fragile peace, may already have been lost. 

Although Poulton was not strictly speaking a capacity case, it is a useful illustration of the fragility of trust structures that vest decisive powers in a single individual whose ability to exercise them may deteriorate over time. Where a protector loses capacity, trustees can be left with no option but to seek court directions or removal of the protector, which is an expensive and time-consuming process that could easily have been avoided by careful drafting.

Protector provisions in new trust deeds should, therefore, address a protector’s capacity explicitly, including clear mechanisms for determining incapacity, automatic cessation of office, succession arrangements, and emergency powers enabling trustees to act without consent where delay would prejudice beneficiaries.

6. Conclusion
The protector is no longer a ceremonial addition to the trust deed; they operate as key decision-makers, whose choices can determine the fate of a trust. Across leading offshore jurisdictions, courts have increasingly recognised this reality and responded with a strong message: protectors’ powers must go hand in hand with accountability. 

For trustees and advisors, the lesson is clear. Protectors must be advised, supported, and, where necessary, robustly challenged. The era of unexamined deference to protectors is over. The protector can no longer be treated as a passive safeguard, invoked only when convenient. Where a modern protector occupies a position of real power, as the courts have shown, with great power comes great responsibility. 

Footnotes
1,  [2015] JRC 196
2,  [2012] JRC 169A
3,  Royal Court of Guernsey, Judgment 31/2015
4,  (2006) 9 ITELR 676
5,  FSD 121/2016, judgment 18 February 2022
6,  [2017] EWHC 2426 (Ch)
7,  [2021] JRC 248
8,  [2017] SC (Bda) 56 Civ
9,  [2026] UKPC 11
10,  Ibid. 

About the author

Danielle Cahill
Danielle is a partner in the private wealth disputes team in London, with a particular focus on developing Hugh James’ cross-border and offshore disputes practice. Danielle spent 13 years of her career in Clifford Chance’s litigation and dispute resolution practice acting on high-profile cases involving capacity and power of attorney issues in the High Court and Court of Protection. Her expertise lies in representing high net worth individuals in complex family disputes, as well as advising trustees, commercial and banking clients.

About Hugh James
Hugh James is a full-service, top 100 UK law firm, and the largest law firm in Wales – offering specialist legal and financial advice to businesses, organisations, and individuals. It was established in 1960 and now employs over 700 staff across its sites in Cardiff, London, Manchester, Southampton, and Plymouth.