In recent times, trusts often include a designation of a person called a “trust protector” or similar description. The trust protector does not have the duties of the trustee. The trust protector is able to step in when an unanticipated issue arises, and take appropriate action.
Florida, like other states, has a statute called “Powers to Direct.” We call the person with powers to direct a trust protector. The statute provides that a trust can designate a person to "direct certain actions of the trustee", and if it does, and the person holding the power directs the trustee to take an action, the trustee shall take the action, unless it would be manifestly contrary to the terms of the trust, or would be a serious breach of fiduciary duty to the beneficiaries.
The trust can specify that the trust protector has the power to direct a modification or termination of the trust. The person with the power is a fiduciary, required to act in good faith with regard to the purposes of the trust and the interests of the beneficiaries.The trust protector can have additional powers. The trust protector could be designated to confirm a determination that the grantor of the trust has become incapacitated. The trust protector can also be designated powers to remove and appoint a trustee or successor trustee.
Ideally, a trust protector would be somebody other than the trustee. Many times, clients can not come up with any names other than those they have named as trustee and successor trustee. The trust protector could involve the same people, perhaps together instead of one followed by the other, or in a different combination. For example, a family that names one child, followed by another child, followed by another child, as successor trustees, could name all together as a committee of trust protectors.
The designation of a trust protector is a powerful tool granting powers to take important action if necessary when the grantor is unable to take those actions.