Individuals: to act as a director of a company, a co-trustee or protector of a trust, an executor of a will or administrator of an estate you will need a personal fiduciary licence if you are receiving an income, fee, emolument or other consideration in money or money's worth for doing so.
Company incorporated in Guernsey or Alderney: you will need a full fiduciary licence to carry on regulated activities by way of business from anywhere in the world.
Company other than one incorporated in Guernsey or Alderney: you will need a full fiduciary licence to carry on regulated activities by way of business, in or from within the Bailiwick of Guernsey.
Regulated activities: are set out under section 2 of the Fiduciary Law and include the formation, management or administration of trusts, companies, partnerships or other unincorporated bodies or the provision of advice in relation to their formation.
Statutory exemptions: are set out under section 3 of the Fiduciary Law which can be carried on without the need for a personal or full fiduciary licence.
We can offer general comments as to the activities covered by the Fiduciary Law, but we cannot provide legal advice in respect of specific circumstances. If you are in doubt, you should seek advice from a lawyer qualified in Guernsey law.
The role of acting as a director in or from within the Bailiwick is a regulated activity for which a fiduciary licence is required whether the role is undertaken by an individual or a corporate director.
There is a limited exemption in the Fiduciary Law which allows individuals to hold up to a maximum of 6 directorships, which are not subject to any other exemptions in the Fiduciary Law, without the need to obtain a personal fiduciary licence. The exemption is not available to corporate directors who must be licensed under the Fiduciaries Law. The exemption does not cover the provision of any other corporate services including providing a registered office.
The Commission has the power to disapply this exemption if it determines that, in having regard to the minimum licensing criteria in Schedule 1 to the Fiduciaries Law, an individual is not fit and proper to be a director of a company. This can include instances where the individual has failed to comply with any of the anti-money laundering and counter terrorism financing legislation and the rules of the Handbook.
Whilst an individual utilising this exemption does not require a personal fiduciary licence, he remains subject to the Proceeds of Crime Law and is required to comply with the requirements in the Criminal Justice Proceeds of Crime Regulations and the rules in the Handbook.
This means that those individuals acting as director under this exemption must undertake customer due diligence on the beneficial ownership of the companies they serve and carry out ongoing monitoring of the companies' activities to the same regulatory standard as any other Bailiwick financial services business.
The Commission may enquire into the number and nature of an individual's directorships where the number and nature of directorships held suggest that a personal fiduciary licence may be required under the Fiduciary Law.
A Private Trust Company ("PTC") is a company that acts as a trustee to a specific trust or a group of connected trusts, often for one family.
In Guernsey, acting as trustee is a regulated fiduciary activity for which a full fiduciary licence is required if it is done "by way of business".
For the purpose of the Fiduciaries Law, a person who carries on any activity shall be deemed to do so by way of business if he receives any income, fee, emolument or other consideration in money or money's worth for doing so. For the avoidance of doubt, a PTC may be acting by way of business even if it is merely acting as a conduit and paying fees onto a third party.
However, under section 3(1)(y) of the Fiduciaries Law, it is possible for a PTC that is operating by way of business to seek a discretionary exemption from licensing. The Commission recognises the potentially disproportionate burden of requiring a full fiduciary licence for essentially one business relationship. Therefore the Commission may, where it thinks appropriate having given consideration to the specific circumstances, on application by the PTC, exempt it from the requirement to obtain a licence, provided that certain criteria are met.
The Guidance Note on Private Trust Companies here provides more information in relation to PTCs and discretionary exemption.