A trust protector is a person or entity named in the trust agreement who will help ensure that the special needs trust (SNT) is well managed by the trustee. The trust agreement spells out the extent of the trust protector’s responsibilities – the trust protector can monitor or direct the trustee’s actions, either periodically or if a problem arises.
Typically, the beneficiaries of a trust monitor the trustee’s performance and make sure the settlor’s wishes are carried out. However, if the beneficiary of an SNT is unable to supervise the trustee due to the nature of his or her disability, a trust protector may provide this important oversight. The trust protector affords an extra set of eyes and ears to ensure that the SNT is managed well, complies with laws and regulations governing SNTs, and meets the beneficiary’s needs.
Another option may be to have the drafting attorney write a provision to appoint a trust protector at later date when such a role is necessary. The attorney may draft the trust with the trust protector provisions, and then state that a trust protector may be appointed at any time by the settlor, by the drafting attorney, or by a court. By allowing such flexibility, the trust protector may be appointed to make a required change, and then resign his or her duties or be removed, which may avoid any legal fiduciary duties that may attach to such a position.
Although executing an irrevocable trust may seem daunting, a trust protector may provide the reassurance that if the law or circumstances change, he or she can assist with making any required changes.
