Technical article
What a Trust Protector Does, and Whether a Family Member Could Be One
A protector is a person other than the trustee or a beneficiary who holds power over some part of a trust.
Picture a couple with a trust for their three children. The lawyer asks who they want as protector. The couple look at each other. Their eldest is careful with money. Is it a risky job, and is it a risky one for her?
The job first. A protector is a person other than the trustee or a beneficiary who holds power over some part of a trust. That is the definition in the Uniform Trust Code, section 808.
What a protector can be given
South Dakota's law lists 18 possible powers. They include removing and appointing a trustee or adviser, vetoing or directing distributions, changing the place or governing law, amending for tax law changes and ending the trust. The protector uses them in "sole and absolute discretion", and they bind everyone else.
Is the protector a fiduciary?
That depends on the place.
| Place or code | Protector's duty |
|---|---|
| South Dakota | Not a fiduciary unless the deed says so. A fiduciary when acting as an investment, distribution or tax adviser. The deed can give a protector a trustee's immunities. |
| Uniform Trust Code | Presumed a fiduciary, unless the deed says otherwise. About 36 jurisdictions use it. |
| Delaware | Commonly treated as a fiduciary under 12 Del. C. 3313(f). |
One law-firm guide says a fiduciary protector can be sued for breach. A non-fiduciary faces a higher bar, such as bad faith, fraud or gross misconduct. For a daughter, that is the first answer to "is it risky." The risk follows the wording of the deed.
Where a family member can be a problem for the trust
The sources point at three trouble spots.
A protector who is also a beneficiary and can override the settlor may be treated as holding a general power of appointment. Combining roles may weaken asset protection. The guide that says so cites no cases, so it sits at tier C.
A protector who answers to the settlor in every way that matters can cost the trust its protection. A US bankruptcy court in 2011 voided two Belize trusts as to creditors where the settlor led a one-man committee that controlled the protector, and the first payment to creditors was about a penny on the dollar. An Illinois court in 2012 held a Cook Islands trust void as to creditors where the settlor named himself protector with absolute power. A 2017 English judgment treated a settlor who was protector, beneficiary and holder of a veto as the real owner of New Zealand trust assets. These cases come from a firm that sells offshore planning, so read them as one side's summary.
A Cook Islands law firm advises that a settlor acting as protector hold only negative powers, such as a veto. It says affirmative powers over investments or distributions strengthen a creditor's argument.
Protectors are also often barred from removing a spouse who serves as trustee.
You could
You could ask the lawyer three things. Is the protector a fiduciary under this deed? Who can remove the protector? What happens to the powers when the protector dies or steps back? You could ask whether a trusted professional or a friend fits better than a child who is also a beneficiary.
If your family has asked someone to take this job, what did you tell them it involved? Share it here. Someone weighing the same question may find your answer useful.
Figures are estimates for planning, based on public data. Date read: October 2026.
Sources
- South Dakota Legislature, statutes 55-1B-6, 55-1B-1 and 55-1B-1.1 (A)
- Cornell Legal Information Institute, trust protector definition (A)
- WealthManagement.com, trust protectors explained (B)
- RMO LLP guide to trust protectors, 2026 (C)
- Alper Law case library and protector article, 2025, covering the Belize, Cook Islands and English cases (C)
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