景观

There has been a growing trend over recent years for the development of bespoke and complex holding structures to accommodate the needs and sensitivities of ultra-high net worth individuals. Often, the clients originate from civil law jurisdictions and as a consequence are unfamiliar with trusts and the fiduciary relationship created. There is (understandably) suspicion.

虽然有许多强大的结构化选项，例如重新启动的基金会和公司和合作解决方案，但信任仍然是一个流行的选择，顾问制定了各种技术，以减轻一些问题，同时保持结构的完整性。引进了一致的治理结构，使得机架和信托的受益者以富有成效的方式与受托人互动，前进是这些结构的核心。

A question of control

控制问题往往是与寻求建立连续目的持有结构的客户的讨论的核心。

Who is this trustee and why would I transfer my most valuable assets to them? Why would I trust these strangers to facilitate and implement the vision of my legacy for my family? I want security, but I also want control!

这些并不常见的担忧通过开发旨在使客户能够保留的影响力，同时确保信托提供的所有其他福利。一个流行的选择是任命私人信托公司（'PTC'）结构而不是机构受托人。

冷舒适？

The use of a PTC, in conjunction with an internal governance system, can go some way to appeasing clients who are concerned about loss of control – but there are risks and pitfalls that should be considered. These structures are not always the panacea that they promise to be. The introduction of multi-layered governance is not always necessary and does not always achieve the desired end. Often, weakness in the structure is only tested at crisis point. Most importantly, consideration needs to be given to whether the layers of complexity being proposed do actually offer the protections that are needed by the client – and that the fiduciary nature of some of the offices created is fully appreciated.

私人信托公司结构

A typical private trust company structure would see an institutional trustee owning the shares in a PTC via a purpose trust established for this very reason. The directors of the PTC itself are likely to be a combination of family members, trusted advisers and independent professional trustees. The PTC will, typically, be trustee of a flexible discretionary trust.

So called ‘control’ or ‘influence’ is reserved to the settlor (or a trusted adviser of the settlor) in a variety of ways throughout the structure:

• Purpose trust:通过任命enf(法定必需)orcer mechanism through the purpose trust itself. It is often said that this role is key - the office holder will also often be entrusted with the power to remove the trustee of the purpose trust and appoint it with someone of its choosing. The trustee is, of course, the shareholder of the PTC and so as such it should have the power to remove directors. The settlor will often be the appointor i.e. he will have the power to appoint and remove the enforcer.

• PTC:the directors of the PTC are the decision makers and their identity is fundamental to the character and operation of the structure – family members, professionals and business associates may all win a seat at the table.

• 自由信任：在结构的另一端，PTC是受托人的信任通常会为保护者提供。保护员通常具有指定和移除受托人的权力，但也将有几个所谓的否决权或同意权，使他们能够通过各种更重要的权力的受托人提供支票和余额来对练习（例如，将资本分配给受益人或从自由裁量权受益人类别中加入或删除受益人的权力的权力。再次，机架通常是常规，所以有能力去除保护器并指定更换。

Influential settlor v reserved powers v sham

The governance mechanisms built into a typical PTC structure are designed to ensure that the settlor retains influence over the structure. This is significant – considerable weakness may be introduced into a structure where a settlor seeks to retain control rather than influence. This is a nuanced but significant distinction.

Where a settlor is desirous of retaining control over specified decisions, consideration should be given to the overt reservation of power under the governing law of the trust (and provided such a reservation does not give ride to any tax risk), rather than a reservation of power via the ‘back door’.

In light of thePugachevdecision very careful consideration must be given to the role played by the settlor in the governance of the structure.

方形钉圆孔？

典型的PTC结构提供多个办公室。委托人，保护者，PTC的执业者和董事，名称少数（可能有其他人 - 例如，投资或分销委员会等）。

但是，对于这种多层治理系统添加价值，而不是简单的复杂性和费用，应该指定“右”人员对角色。

There is little point created a multiplicitious governance system, if the same individual or entity is appointed to each office.

Consider for example a common fact pattern – the same individual (likely the settlor) is the appointor of both the purpose trust (that owns the PTC) and the substantive trust for beneficiaries. The appointor then appoints the same individual as enforcer of the purpose trust and as protector of the substantive trust.

th什么价值is add? Does it undermine one of the perceived benefits of a PTC? Arguable, yes.

通过引入“保护器”类型的权力，法规的实用信托的执行者的作用通常会超出这一规约所要求的。因此，执法人员有权任命并删除该机构受托人，谁是PTC的股东。

保护者可能有明确的权力来删除受托人并指定替代品。因此，执行者和保护者都可以影响信托的决策者 - 执法者对董事的身份影响，以及保护者对实质信托受托人的身份直接权力。

虽然这种机制通过其董事表现不正当地对PTC的风险提供了一些舒适性，但它引入了另一种，独立的，脆弱性。如果执法者/保护者表现不当怎么办？是的，任命者（如果存在）可能有能力解决这个问题，但它可能为时已晚。损坏可以完成。

The enforcer and the protector offices should be independent of one another. If that is not possible, it may be that there is little value in creating both roles.

这只是如果一个人被任命为整个结构的多个办事处，则可以出现冲突的一个示例。

The lesson learned may be that rather than shoe-horning a limited number of individuals into a series of roles, governance should be built around the individuals whom the settlor trusts and wishes to be involved. That may, ultimately, steer the planning away from a classic PTC structure.

保持个人吗？

客人还必须了解对他和其他人保留的权力是个人的或受托人。机架可以通过委托人职能对自己储备的影响通常表示为个人本质上，因此可以随身行使。然而，分析对于保护器（或具有扩展功率的强制性）不那么简单。

Recent trends in case law indicate that these offices are more likely to be fiduciary in nature. If that is the case, do they really do what they are often represented to do?

Board room politics

The constitution of the board of directors must be decided with care. There are many options – with a board made up of entirely family members at one end of the spectrum and a board with only professionals at the other. Both of these options have arguable limitations, but there is no right or wrong decision here, provided that the directors fulfil their duties and behave properly.

与本次讨论的目的更相关的是股东在PTC董事会上的权力。在一个有争议的情况下，简单地说股东可以删除董事并用他们选择的人替换他的权利是正确的吗？

The PTC’s articles, local employment law and the jurisdiction of the local courts should all be considered. The removal of a director may not be as straightforward as hoped, depending on the circumstances.

Conclusion

As advisers we must ensure that our clients understand the weaknesses inherent in the complex solutions we propose – a case law develops these are thrown into sharp focus. Equally, it is incumbent upon us to understand the risks which are of real concern to our clients and ensure that these are addressed and tested for weaknesses.

As a minimum we must ensure that the offices of governance proposed are populated so as to mitigate against the risk of concerns identified. We must also ensure that our clients have a full appreciation of the nature of the powers conferred on these office holders.