Introduction

Published: 04/04/2016
Updated: 04/04/2016

Summary

Charities make a big difference in all aspects of our society. Achieving this requires the hard work and commitment of thousands of charity trustees who give their time and energy to Scotland’s charities.

Charity trustees are the people who have general control and management of the charity and are responsible for making sure that the charity works to achieve its charity’s purposes (the reasons the charity exists).

The role of a charity trustee is extremely important and can be very rewarding. It is important for both you and your charity, that you know what your responsibilities are, and understand what you are expected to do. This guidance will help you do this.

The charity trustee duties are set out in The Charities and Trustee Investment(Scotland) Act 2005, referred to in this guidance as the 2005 Act. We, the Scottish Charity Regulator, are responsible for regulating charities registered in Scotland and their charity trustees. This guidance explains what the 2005 Act says charity trustees must do or must not do.

The guidance does not cover all the laws that might be applicable to your charity. It covers the legal duties of charity trustees set out in the2005 Act, with good practice recommendations and links to sources of advice.

As charities come in all different shapes and sizes, not everything in this guidance will apply to all charities registered in Scotland. In addition, many charities have to comply with other legislation and regulation, for example, charitable companies must also comply with company law.


 

This guidance is for:

  • Anyone who is a trustee of a charity registered in Scotland.
  • Anyone thinking of becoming a charity trustee.
  • People working with or advising charity trustees.

 

In this guidance, we explore the general duties and specific duties of charity trustees in the 2005 Act. We give you examples of how these might work and share good practice from our experience as Regulator and from organisations in the charity sector.

Legal requirements are something that the law says you must do and are highlighted by the 'Legal Duty' icon:

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Good practice is not required by law but is something you could do to help to make sure that your charity is doing its best to comply. What is good practice for your charity might depend on the size or type of charity you are. In this guidance, we try to give examples of good practice that will be applicable to many Scottish charities. Examples of good practice are highlighted with the ‘Good Practice’ icon:

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The glossary provides you with further information, definitions and descriptions of some key terms. We have highlighted these key terms in bold purple type. Clicking on these terms will take you straight to the glossary or the relevant section of the guidance.

The guidance is split into sections to help you find the information most relevant to you and your charity. 


Who are the charity trustees?

The people in charge of a charity and responsible for controlling its management and administration are its ‘charity trustees’. You may call yourselves a committee, a board, Directors or something less formal but the 2005 Act says you are the charity’s trustees and have legal responsibilities. 

Charity trustees are the people who control and manage a charity. They are responsible for complying with the law.

There is no minimum age for charity trustees stated in the 2005 Act; however, we would expect charity trustees to be over the age of 16. If any charity trustees are under the age of 16, it would be best to get professional advice to determine if this is suitable and if there are any legal implications. Some model governing documents or specific legal forms (such as a company) state the minimum age of a charity trustee.

The 2005 Act states that charity trustees are the people who have “the general control and management” of a charity. However, there can be situations where people who are not formally appointed as charity trustees can exercise influence and even control over a charity. For example, an elected member or employee of a local authority attends meetings of the charity trustees. The 2005 Act makes the following two points clear:

  1. Charity trustees are responsible for the charity and may not pass this responsibility onto anyone else as long as they remain a charity trustee.
  1. Any person who, though not formally elected or appointed as a charity trustee, exercises some degree of control over a charity, may still be held legally liable as a charity trustee.

Some people are not allowed by law to be a charity trustee. Every charity trustee must make sure that he or she is not breaking the law by being a charity trustee.

Certain people are disqualified from acting as charity trustees:

  • Someone with an unspent conviction for an offence involving dishonesty or an offence under the 2005 Act.
  • Someone who is an undischarged bankrupt or has a Protected Trust Deed.
  • Someone who has been removed under either Scottish or English Law or the courts from being a charity trustee.
  • Someone who is disqualified from being a company director.

It is the responsibility of individuals to make sure they are not disqualified from being a charity trustee. Anyone who acts as a charity trustee whilst disqualified is guilty of an offence punishable by a fine or imprisonment, or both.

It is also the collective responsibility of all the charity trustees to make sure that none of them are disqualified. If you know that one of your fellow charity trustees is disqualified and you do not do anything about it, you could be in breach of your charity trustee duties.  

If you are not sure if you can be a charity trustee, you can ask us.

Good practice is to:

  • Get prospective charity trustees to sign a declaration before their election or appointment to confirm they are not disqualified from acting as a charity trustee.
  • Consider whether any other checks need to be carried out. For example, a Disclosure Scotland check for charity trustees working with vulnerable beneficiaries.

In some cases a charity’s governing document might say who can and cannot be a charity trustee, for example some charity trustees can only be chosen from the membership of the charity.

Waivers

A disqualified person can apply to us for a waiver to lift the disqualification. You can do this in relation to a specific charity, type of charity or for charities in general. We will take into account all the circumstances when deciding if we can grant a waiver of disqualification. If you want to apply for a waiver please complete the application for waiver of disqualification as a charity trustee

Being a charity trustee means you are fully responsible for how your charity is run and what it does. It does not necessarily mean running the charity on a day to day basis and making operational decisions. Your charity might have volunteers or staff that do this.


All the charity trustees share responsibility

All of the group of charity trustees have charity trustee duties - no matter how small your charity is. A duty is something that you must do. The group shares the responsibility equally. No individual charity trustee, for example the Chair or Treasurer, has more responsibility than the other charity trustees do. We call this collective responsibility.

See the section on charity trustee duties for more details.

Your charity’s governing document may set a minimum and/or maximum number of charity trustees needed and the minimum number required for a quorum.  A Scottish Charitable Incorporated Organisation (SCIO) must have at least three charity trustees as stated in the SCIO Regulations. For other legal forms the law does not set a minimum number of charity trustees, but it is good practice to have at least three.




For case studies and advice please see our Good Governance pages

Sources of help, advice and best practice:

Here we set out the specific sections of charity law in Scotland relevant to each part of the guidance.  

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