Protectors and guardians: observations from Australia

Abstract

Abstract The role of protectors, guardians and other third-party officers is not well-explored in Australian case law. This article seeks to provide guidance for Australian practitioners, with reference to overseas case law, as cases involving these roles will become increasingly prominent in future years. The article discusses the definition of “protector”, the nature of different powers, the fiduciary aspects of the role and the possibility that a court may find a trust to be illusory, or “look through” the trust. The advantages and disadvantages of protectors are canvassed along with tips for drafters of trust deeds.