Reminder of Trustee Duties
To understand what a charity trustee’s duties are, it is first important to understand what the role of a trustee is. Trustees are the captains of the ship, there to ensure the charity is on course and running smoothly. Mostly, it is for the trustees to have the general management and control of a charity. Trustees are there to ensure that the charity is run effectively and can account for its outcomes and objectives.
Therefore it is important that when you take on the role of a charity trustee, you make sure you understand what your duties are. We have set out a short summary of what these are below, but if you would like to understand more about this in detail, please do look out for our regular trustee training events.
The 2005 Act
If the charity trustees are the captain of the ship, then the Charities and Trustee Investment (Scotland) Act 2005 is the map you use to frame your path. Much as maps have immoveable points you must navigate around, so does the 2005 Act. The duties contained in the Act are legally binding and all charity trustees must comply with them. They are not just examples of good practice or goals to aim for.
A breach of the legal duties is always considered legally to be misconduct in the administration of a charity, although some examples of misconduct will of course be so minor as to need no regulatory or legal intervention, even less any form of action against a trustee.
Nevertheless, the fact that a breach of the legal duties is always misconduct is a critical point that charity trustees must be aware of, as that knowledge sets the tone for how trustees respond to and comply with their duties.
Section 66 of the 2005 Act states that a charity trustee must act in the interests of the charity and must, in particular:-
- Seek, in good faith, to ensure that the charity acts in a manner which is consistent with its purposes;
- Act with the care and diligence that it is reasonable to expect of a person who is managing the affairs of another person, and
- In circumstances capable of giving rise to a conflict of interest between the charity and any person responsible for the appointment of the charity trustee –
- Put the interests of the charity before those of the other person, or
- Where any other duty prevents the charity trustee from doing so, disclose the conflicting interest to the charity and refrain from participating in any deliberation or decision of the other charity trustees with regard to the matter in question.
There are also other legal duties that a charity trustee must comply with which are set out throughout the Act. These include:-
- Submitting your accounts and annual return on time;
- Keeping sufficient financial records;
- To provide information to the general public in the interests of transparency and accountability.
If a charity trustee has been found to be in breach of any of the duties found in the 2005 Act, OSCR has powers under section 31 to take action. This could include:-
- Suspension of trustees;
- Restrict transactions which a charity may enter into;
- Direct a third party not to part with the charity’s assets.
These may all sound fairly daunting, but is also important to note that OSCR must act proportionately and will take into account all factors when considering any of the above actions. If a charity trustee acts in good faith and seeks to correct any instances of misconduct, OSCR will not seek to suspend them.
Therefore, always keeping in mind the above legal duties when you are carrying out business on behalf of the charity is a significant part in ensuring that you are acting in the best interest of the charity. Many charity trustees will be doing this already, and it is always good to remind yourself what the specific legal duties are. If you would like to learn more about trustee legal duties, please do sign up to our Trustee Training event taking place in Glasgow on the 31st January 2024.