Protectors in Liechtenstein: protecting or threatening trust and foundation assets?

Abstract When setting up trusts and foundations, settlors and founders struggle with giving away assets and control to professional trustees in Liechtenstein whom, in many cases, they have never met. At first, to bridge that gap, settlors’ confidants accepted roles as protectors and the settlor conferred powers on them aimed at policing and, if necessary, firing the trustee. In the absence of enforceable rights to information and locus standi in Liechtenstein courts, discretionary trust beneficiaries greatly rely on the assistance of such protectors, especially when trusts are in crisis or dispute. More recently, however, protectors have undergone sophisticated (re-)structuring and adopted new identities, e.g. as corporate entities, thus not necessarily facilitating governance, but sometimes adding complexity. Increasingly, the international regulatory framework has impacted that structure, as the threat of being considered a controlling protector might lead to undesired effects, including protectors being registered and exposed in BO Public Registers, or, even worse, being reported as beneficial owners of trusts and foundations to their local tax authorities. As is the case with any legal concept, structuring provides protectors with both opportunities and pitfalls. This article wishes to set out how protectors can save trusts and foundations from collapsing and how to protect assets from the onslaught of the settlors’ creditors. That said, there are some downsides: a very recent Supreme Court case shows that using protectors might doom the trust or foundation to failure unless pristine standards and principles are followed.