The FCA’s unusual warning on trusts

The Financial Conduct Authority (FCA) has issued a warning on some trust services.

An asset protection trust might sound like a good idea if you have assets you wish to protect. Unfortunately, the reality may be rather different, as the FCA made clear in a warning issued in late April.

Asset protection trusts are nothing new and for years have been marketed as a one-stop solution for retirees to:

Reduce personal wealth and thereby limit the level of personal contribution towards long-term care costs;
Save on probate fees and speed the distribution of their estate on death; and
Cut inheritance tax (IHT).

Care fee assessment

In practice, the trust may achieve none of these goals. For example, where care costs are concerned, a local authority could treat the establishment of an asset protection trust as a “deliberate deprivation of assets”. In such circumstances, the care fee assessment would ignore the existence of the trust.

Probate may also be complicated rather than simplified – and costs increased – by an asset protection trust, as the assets in the typical trust structure would still need to be considered when preparing a probate application. Similarly, the typical trust does nothing to ease the burden of IHT because the person creating the trust retains a right to the income from it.

FCA’s advice

The FCA said that it had “…seen cases of firms seriously mismanaging trusts with unsuitable investments being made by trustees.” Those trustees may be associated with the promoter of the trust and, under the powers granted by the trust, have full discretion as to how to invest the trust’s capital. As the FCA says, “…where the trustees involved are not sufficiently competent, or not acting in your best interests, there is scope for your money to be misused.”

Before signing up to an asset protection trust, the FCA says you should seek:

independent legal advice to ensure that the trust delivers the intended protection; and
independent financial advice to validate any proposed investment strategy.

Do not be surprised if that advice leaves you wondering whether there is any benefit to an asset protection trust, other than for the promoter.