Charity law: being a trustee

Who are the Charity Trustees?

In the Church of Scotland, each congregation is a charity and the charity trustees are the members of the Kirk Session, together with the members of any separate Financial Board (e.g. the Congregational Board, Deacons’ Court or Board of Managers). Elders who are not on the Session, having resigned perhaps due to age or other commitments, are not charity trustees.

The ‘Charity and Trustee Investment Act 2005’ (the Act) and the common law impose the duties on charities and charity trustees. The Act also sets up the ‘Office of the Scottish Charity Regulator’ (OSCR) as the body responsible for overseeing Scottish Charities.

The Act defines the charity trustees as ‘the persons having the general control and management of the administration of a charity.’

What is expected of Charity Trustees?

The Act sets out a number of general duties that the charity trustees must fulfil. They must:

  • act in the interests of the charity, putting its interests above their own interests or those of any other person or organisation
  • operate in a manner consistent with the charity's purposes. Trustees should carry out their duties in accordance with their governing document
  • act with due care and diligence
  • ensure that the charity complies with the provisions of the Act and other relevant legislation

The Act also has a number of specific duties, namely that charity trustees must:

  • update the charity's details to keep the Charity Register up to date
  • comply with the statutory duty to supply information via the Annual Return and the Trustees’ Report and Annual Accounts and about certain changes, e.g. change of constitution, contact details
  • keep specified accounting records and have them independently examined
  • if using a professional fundraiser, comply with relevant regulations about this
  • provide certain information to the public

The last duty includes giving out copies of accounts, if asked for these, and putting the charity’s legal name and number on the congregation’s websites, notepaper and other literature. HMRC also require charity trustees to meet the ‘fit and proper person’ test.

Full overview on Charity Law: Being a Trustee

Further reading and resources

Law circulars

Circulars available include those dealing in greater detail with:

  • Charity law, trustees’ duties and potential liabilities
  • Remuneration issues affecting congregation
  • The References in Documents regulations
  • Use of Congregational monies, the making of gifts and collections for other charities

Guidance on the Act and on charity trustees’ duties can also be downloaded from the OSCR website. Please note that the OSCR guidance does not currently cover the special position of charity trustees of DRCs.