Protecting Me Or Protecting You?

Recent cases have shone a light on the role of the protector of a trust – particularly in respect of conflicts of interests. Often appointed by a settlor in order to give reassurance in ensuring that his wishes for the trust will be carried out by the trustee particularly perhaps after his death, the Protector, however, owes no duty to the settlor and is primarily there for the protection of the beneficiaries.

Fiduciary Position

There is some debate as to whether a protector is in a fiduciary position. The answer will usually depend upon the powers given to him and for what purpose. Certainly, the courts have found that in respect of dispositive powers, and powers to appoint a new trustee or a new protector, these would generally be fiduciary in nature. Not only does this mean that the fiduciary must actively consider from time to time whether or not to exercise the power, but in exercising it, he must only do so for the purpose for which it was given.

A useful summary of the position in Jersey as to the nature of a fiduciary duty was set out by the then Deputy Bailiff (now Bailiff) in In the matter of the E, L, O and R Trusts [2008] JRC150. He approved the comments of Millett J in Bristol & West Building Society v. Mothew [1996] 4 All ER 698: "A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence...The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary."

Duty Of Loyalty

Certain obligations flow from that duty of loyalty. First, a fiduciary must not act for two principals with potentially conflicting interests without the informed consent of both. Secondly, he must act with good faith. If acting for more than one principal he "...must not allow the performance of his obligations to one principal to be influenced by his relationship with the other. He must serve each as faithfully and loyally as if he were his only principal." However, "...an unconscious omission which happens to benefit one principal at the expense of the other does not constitute a breach of fiduciary duty, though it may constitute a breach of the duty of skill and care."

If there is an actual conflict of interest a fiduciary may have no alternative but to cease to act for at least one and preferably both.

Clearly one facet of the fiduciary relationship is the...