What trustees should be thinking about now
A recent decision of the Privy Council, together with legislative developments in Guernsey, has shone a spotlight on the role of trust protectors. In A and 6 others v C and 13 others [2026] UKPC 11, the court considered how a protector should approach requests to approve or withhold consent to important trustee decisions. Its comments suggest that, depending on the wording of the trust deed, a protector may be expected to do more than simply confirm that a trustee’s decision is legally valid. In some cases, they may need to form their own independent view on whether the decision is appropriate.
Recent amendments to the Trusts (Guernsey) Law reinforce this direction of travel. The reversal of the presumption in section 15 means that for new trusts moving towards holders of trust powers will be treated as fiduciary in nature unless the trust instrument provides otherwise.
Read together, these developments point to a clearer expectation that protectors are active participants in trust governance.
For trustees, that has practical implications for governance, decision-making and the way protector relationships are managed.
A role with more responsibility
Protectors have often been described as a safeguard on trustee discretion. In many structures, that has meant a consent right over important decisions, without day-to-day involvement in administration. The Privy Council’s judgment suggests that this description can be too narrow, while Guernsey’s legislative reforms now go further by establishing a default position. Where a protector holds meaningful consent powers, their role may implicitly carry genuine fiduciary responsibility, including the need to exercise independent judgment.
Understandably, for some protectors, this may come as unwelcome news. Family members, friends or long-standing advisors who accepted the role as a favour to the settlor or beneficiaries, may now pause for thought before taking on, or continuing, an appointment which comes with increased personal liability.
This has consequences for settlors, beneficiaries and trustees alike and, whilst the judgement was firmly grounded in the construction of the trust instruments rather than a formal recommendation for practice, it did contain some clear points of guidance. As a result, we may see a change to the way that these parties appoint, engage and inform protectors in the future.
Education before appointment
The Council was clear that protectors who are fiduciaries assume those obligations on accepting office. It is not for trustees to “create” those duties, but it is increasingly important that protectors understand what is being asked of them in practical as well as legal term
Therefore, responsible trustees should play a key role in the pre-appointment education process, guiding the settlor to make appropriate choices as well as outlining fiduciary duties to the prospective protector. This is particularly important for families where the appeal of appointing someone close to the settlor or beneficiaries may be obvious, but where the realities of the role may be less so.
Such realities include:
- understanding the scope of their powers and the duty to exercise their discretion for proper purposes, for what is right – rather than rubber-stamping trustee decisions;
- the avoidance of conflicts of interest and personal profit;
- when and how they will be expected to collaborate with other trust actors;
- how far they may need to test the reasoning behind a trustee’s proposal, but without ‘policing’ or forcing trustee’s outcomes;
For some it may feel like a difficult balance to strike, so clear conversations, led by knowledgeable trustees, which educate, establish expectations, and set the tone for the relationship at the outset will help to remove uncertainty and avoid future difficulty.
It is also important to note that the Guernsey amendments are not retrospective. Existing trusts will continue to be interpreted based on the law as it stood at the time they were established, meaning that the extent to which protector powers are fiduciary will still depend on the wording of the trust instrument and applicable case law
Better decisions need better documentation
A responsible protector will need a higher quality of information. That is likely to mean more structured briefing materials when trustee consent is needed, especially for significant distributions, restructurings, conflict issues, or decisions that may affect different beneficiary groups in different ways.
From a trustee’s perspective, this is not a bad outcome. Good decision-making has always depended on clear reasoning, proper evidence and a fair assessment of relevant factors. Jersey authority has long underlined the importance of trustees taking account of all relevant matters, including tax consequences where they are material. As the Jersey & Guernsey Law Review has noted, trustees are duty-bound to obtain appropriate tax advice where fiscal consequences are relevant to the decision.
In practice, that means trustee papers should do more than explain the proposed outcome. They should show how the decision was reached, what alternatives were considered, what advice was taken, and why the proposal is thought to be in the interests of the beneficiaries as a whole or the relevant class.
Information sharing needs judgment
As protector involvement becomes more active, trustees and protectors will need to agree what good information flow looks like.
Too little information may prevent a protector from carrying out their role properly. Too much may create delay, duplication and a level of involvement that becomes unhelpful. There is no single formula here. The right balance will depend on the wording of the trust instrument, the nature of the protector, the complexity of the issue and the relationship between the parties.
What matters is that expectations are set early and revisited when needed. In our experience, many governance issues are easier to manage when there is clarity about process before a difficult decision arrives.
Will we see more professional protectors?
Possibly. The Privy Council noted that there is often little value in appointing a protector whose only function is to police legality, particularly where professional trustees are already expected to act lawfully and take advice. That observation may encourage some families to think more carefully about who is best placed to perform the role.
For some structures, a professional protector may offer reassurance. Experience, independence and familiarity with fiduciary decision-making can all help, particularly where family dynamics are sensitive or assets are complex.
That said, appointing a professional does not remove the need for good working relationships. Where trustees and protectors are both experienced fiduciaries, differences of view can still arise. The aim is not to eliminate challenge, but to make sure challenge is constructive, proportionate, and centred on the needs of the beneficiaries.
Cost, complexity and the risk of friction
More robust governance usually means more time and more cost. Additional analysis, fuller records, external advice and a more involved consent process all need to be factored into the administration of a structure.
That should not be seen purely as a burden. In many cases, those costs are justified by a lower risk of misunderstandings leading to litigious outcomes later. But they do need to be discussed openly with clients when structures are being designed and reviewed.
The bigger point is that protector provisions should never be included as standard wording without careful thought. If a protector is expected to have real influence, the trust instrument should say so clearly. If the intended role is narrower, that should also be made explicit. One of the clearest lessons from the recent litigation is that silence in the drafting can create uncertainty that is expensive to resolve.
Looking ahead
The direction of travel seems clear. Protectors are increasingly being viewed as participants in trust governance with responsibilities of their own, not simply as passive sign-off points.
For trustees, the response should be practical rather than defensive. Appoint the right people. Be clear about the role. Document decisions properly. Share information thoughtfully. And where the drafting is unclear, address it early rather than waiting for a contentious moment.
Handled well, protector involvement can strengthen a trust structure rather than complicate it. As ever, the best outcomes tend to come from clear thinking, open dialogue and governance that is tailored to the circumstances of the family and the structure involved.
