Mary Carollo: Trusts or Special Power of Appointment

Once a lawsuit is filed against you and a plaintiff’s attorney discovers the existence of a domestic trust, the outcome of the suit is left to a judge or jury. Make no mistake about it, a special power of appointment cannot protect assets held in a domestic trust if a judge or jury decides to find an exception to the law or, worse, if the judge or jury decides to make an example of your situation. Leaving your fate to the judgment of strangers is dangerous. Deterring litigation and keeping control is a better

Offshore Asset Protection Puts You in Control

The main problem with relying solely on a special power of appointment is that assets held in trust and the trust itself are subject to the jurisdiction of the U.S. court system. If a U.S. court decides to disregard a trust, the assets held by that trust are easily accessible. That’s not where you want to find yourself. Offshore asset protection removes both the trust and the assets held in trust from the reach of domestic judges.

Cook Islands Trust Law Deters Litigation

Consider an example from the Cook Islands. If Mr. Jones sets up a trust in the Cook Islands and is later sued, plaintiff’s attorneys are not likely to attack the trust for a number of reasons. First, the only way to invalidate a trust in the Cook Islands is with a judgment from a Cook Islands’ court. The Cook Islands will not recognize such a judgment from a U.S. court. The only way for a plaintiff’s attorney to get such a judgment is to sue in the Cook Islands, which is incredibly expensive, since it requires plaintiff’s to front all the expenses of litigation and does not allow plaintiff’s attorneys to collect contingency fees.

In other words, attorneys attacking a trust in the Cook Islands have to either bill their clients by the hour or work for free (after fronting the cost of international litigation), both of which are expensive propositions. Other benefits include a hard two year statute of limitations, which means that Cook Islands trust cannot be attacked after it is has been in existence for two years!

Special Power of Appoint Revisited

It is true, as we wrote previously, that a special power of appointment contained in a domestic trust provides some level of asset protection. It does not, however, provide comprehensive asset protection. A savvy plaintiff’s attorney will easily be able to discover the existence of such a trust, unless you are willing to lie under oath, which is never advisable. In addition, plaintiffs lawyers have incentives to attack domestic trusts, which leaves the assets in such trusts subject to the whims of the U.S. legal system.

An offshore asset protection trust makes litigation very expensive and, therefore, deters lawsuits in the first place. Even if an offshore trust is attacked, the laws in many foreign jurisdictions are stacked so in favor of asset protection that an adverse judgment is almost inconceivable.

Combining Forces Offshore & Power of Appointment

While an offshore trust provides the most comprehensive form of protection in itself, there is nothing to prevent you from seeking to combine that protection with a special power of appointment. If you have questions about how to accomplish that goal, ask an asset protection attorney.

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