S.L. 331.8 Art. 7The protector.

(1) When setting up a trust in terms of these regulations, a protector having the powers established by article 24A of the Act shall be appointed in all cases, and the protector’s powers shall be exercisable and come into effect not later than the date when the disabled person becomes the sole beneficiary.

(2) The person so appointed shall have no actual or potential interest in the present trust assets or any assets that may be settled on trust at any time in the future.

(3) The protector of a trust set up under these regulations shall not be appointed or continue to act as a protector should any circumstance that gives rise to a conflict of interest as defined in article 2 of the Act arise: Provided that in the case where more than one protector is appointed, it shall be sufficient that at least one of the protectors so appointed continues to comply with the requirements of this sub-regulation.

(4) Where the protector exercises his power to remove a trustee in terms of article 24A of the Act, such removal shall have no effect if it would result in there being no trustee unless, before the removal takes effect, a new trustee is appointed or an application is made to the court for the appointment of a new trustee: Provided further that a trustee ceasing to be a trustee shall also be responsible to fulfil the obligations set out in article 20(4) of the Act.

(5) The trustee shall obtain the consent of the protector in the following cases:

(a) prior to the resignation of the trustee and, or co-trustee; and

(b) subject to the provisions of regulation 6(2), prior to the transfer of assets from the trust: Provided that the protector shall not give his consent to the transfer of transfer of assets in terms of this sub-regulation unless such transfer is justifiable and will effectively be in the best interests of the person with disability:

Provided further that in case of uncertainty as to whether such transfer is in the best interests of the person with disability, the protector, trustee or any other person having a lawful interest may apply to the Court for directions, and the Court shall not approve any such transfer unless it is satisfied that such transfer is justifiable as being in the best interests of the person with disability.

(6) The protector appointed in terms of these regulations shall always be consulted in the following circumstances:

(a) before the trustee exercises discretions and takes decisions relating to distribution of income or capital;

(b) before the trustee takes decisions relating to the medical and educational needs and the care of the person with disability.