Enforcer vs Protector

The enforcer and protector of a trust sound alike, and both sit outside the trustee's chair. Under Mauritian law, though, they answer different needs. A protector is an optional adviser with powers over the trustee. An enforcer exists to hold the trustee to account where no beneficiary can do so. Knowing which one your structure calls for avoids a deed that names the wrong office.

This page compares the two roles. For the protector in depth, see the trust protector overview.

The short answer

A protector is a person, usually chosen by the settlor, who advises the trustee and may hold defined powers over the trust. An enforcer is a person who can enforce the terms of a trust that has no beneficiary to do it. The first role is a matter of design choice. The second becomes a legal requirement in one specific kind of trust.

Both can appear in the same deed, but they are not interchangeable.

What the Trusts Act says about each role

The protector

Section 24 of the Trusts Act 2001 allows the deed to provide for a protector. The protector may be an adult, the settlor included, or a legal person. Unless the deed says otherwise, the protector can remove and appoint trustees, fix the law governing the trust, change the place of administration and withhold consent to certain acts. None of this makes the protector a trustee.

The practical content of these powers is covered in powers of a trust protector.

The enforcer

The enforcer is tied to the purpose trust. Under section 19 of the Trusts Act 2001, a purpose trust, charitable or not, is valid without a beneficiary provided that:

• its purpose is specific, reasonable, achievable and lawful;
• the deed provides for an enforcer and a successor enforcer;
• at least one trustee is a qualified trustee; and
• the deed says what happens to surplus assets when the trust ends.

Where a trust has beneficiaries, they can ask the court to hold the trustee to the deed. A purpose has no such voice. The enforcer fills that gap. Purpose trusts themselves are outside the scope of this site.

Enforcer vs protector side by side

When is an enforcer needed?

You need an enforcer if the trust is a purpose trust under section 19. In a trust for the benefit of family members, the beneficiaries are the ones who can ask the court to hold the trustee to account, so the Act does not require an enforcer. A family trust can name one if the settlor wants an additional safeguard, but that is a drafting choice, not a rule.

What the enforcer is entitled to

Section 21 of the Trusts Act 2001 gives the enforcer access to the information needed to do the job. The enforcer is entitled to the annual accounts of the trust, a copy of the trust deed and the legal advice received by the trustees.

This is a different footing from the protector's. A protector's rights flow from the powers written into the deed. An enforcer's information rights come from the Act itself.

Separation from the trustee

Section 21 also says that the same person cannot be both trustee and enforcer of one trust. The reasoning is plain: someone who is meant to check the trustee cannot also be the trustee. If you are choosing between roles for a given person, see duties of a trustee toward the family to understand what the trustee owes before deciding who should watch over it.

A protector is in a different position. The Act says the protector's powers do not make the protector a trustee. A protector who holds strong powers can still be drawn into the trustee's decisions, which is why the deed should state clearly where each role begins and ends. The comparison is developed in protector vs trustee.

Can the settlor hold either office?

Section 8 of the Trusts Act 2001 allows the settlor to act as trustee, beneficiary, protector or enforcer as well. There is one limit: the settlor cannot be the sole beneficiary of the trust they created.

That said, what the law permits and what is wise are different questions. A settlor who holds too many offices can weaken the independence of the structure. A court may look closely at who really controls the assets. The questions are explored in can the settlor be the protector and the settlor's role and limits.

Replacing an enforcer

When the enforcer of a purpose trust has died, refuses to act or can no longer act, the qualified trustee must notify the Attorney-General in writing. Within 90 days, the Attorney-General appoints the successor named in the deed or, if there is none, a suitable person.

This is another reason the deed should name a successor in advance. For the protector, the mechanism is usually in the deed itself, as set out in how to replace a trust protector.

Who is recorded on the trust register?

Both offices matter for transparency. Under section 26A of the Financial Services Act 2007, the Financial Services Commission (FSC) keeps a register of domestic trusts and of foreign trusts that have at least one qualified trustee. The register holds, among other things, the identity and addresses of beneficiaries, trustees, settlors, protectors and enforcers, together with the trust's object, governing law, place of administration and service providers. The qualified trustee must send the FSC the information and documents it requires, in the time and form the FSC sets.

On the anti-money-laundering side, the Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA) counts the settlor, the trustee, any protector, each beneficiary and anyone else exercising ultimate effective control as beneficial owners of a trust-type arrangement. The FSC's Practice Notes for qualified trustees also refer to the enforcer when describing how beneficial owner information is kept up to date. So naming a protector or enforcer adds a person whose details are recorded and kept current. See the register of trusts for how the register works.

Choosing: a practical way to think about it

Ask three questions in this order.

1. Does the trust have beneficiaries? If yes, an enforcer is not mandatory.
2. Does the family want a trusted person to hold a check on the trustee, for example the power to replace it? If yes, consider a protector, and think through who can be a trust protector.
3. Is the trust built around a purpose rather than people? If yes, an enforcer and a successor enforcer are part of the structure.

Whether a protector is worth having at all is a separate question, addressed in do you need a trust protector.

The answer depends on the facts: the type of trust, the assets, the family and where its members live. This page gives general information, not advice. If you want your situation reviewed, you can send a request through the contact form and it will be passed to an FSC-licensed corporate service provider (Management Licence).