1.5 Can I Be a Trustee?
Are you over 18?- Are you interested in making a difference?
- Are you willing to work hard?
- Are you willing to work with many different kinds of people?
You can be man or woman, young or old, professional worker or tradesperson, able or disabled, black or minority ethnic, gay or lesbian – almost anyone can be a trustee.
Trustees can come from many different backgrounds with a wide range of skills and experiences both professional and personal, which complement and ‘add value’ to the trustee board.
However there are exceptions:
Usually, no-one under the age of 18 can be appointed as a Trustee, although a person under the age of 18 (and over 16) can be the director of a Charitable Company.
Funky Dragon (the Welsh Youth Parliament) has however persuaded the Charity Commission to let it appoint trustees under the age of 18 by first registering as a limited company so that under 18s became directors and then it applied for Charity Commission status.
With the introduction of the Charitable Incorporated Organisation (CIO) legal form, it is likely that the number of trustees appointed between the ages of 16 and 18 may well increase.
The Commission issued guidelines following this case and one of the key points they make are:
“You should consider carefully what restrictions, for practical reasons, should be placed on the total number of charity trustees who can be under 18. In the case of Funky Dragon, we were satisfied that up to 50% of the charity trustee board could be composed of young people aged under 18. This reflects the nature of that charity and we would not currently recommend a larger proportion. The decision should be taken in the light of the specific circumstances of each charity. This should take into account the scale of the charity, the complexity of its activities and governance, and the range of skills and experience required on the charity trustee board.”
If you are a charitable company and want to appoint trustees under the age of 18, you should discuss this with the Charity Commission first.
The following people cannot be appointed as charity trustees:
- Anyone who has been convicted of an offence involving deception or fraud, unless the conviction is spent;
- Anyone who is an undischarged bankrupt;3
- Anyone who has made compositions or arrangements with creditors that have not been discharged;
- Anyone who has previously been removed from Trusteeship of a charity by a Court or the Charity Commission;
- Anyone who is under a disqualification order under the Company Directors Disqualification Act 1986.
TOP TIP:
When recruiting trustees, we recommend that you request prospective trustees to sign a declaration of eligibility. This helps potential new trustees to check that they meet the eligibility requirements and protects the other trustees from liability in the event that one of your fellow trustees turns out to be ineligible to be a trustee.
The Charity Commission has produced a model Declaration of Eligibility Form CSD 1382, and below we provide you with a template of a Trustee Agreement and Declaration which you can download that includes a Declaration of Eligibility.
Please note that in our template we have included some specific provisions relating to time periods in office and removal of trustees – these are for illustrative purposes. Your organisation’s governing document may well include different terms and conditions which would be legally binding.
DOWNLOAD Trustee Declaration of Eligibility (Part of the Trustee Application Form)
Trustee Eligibility and Disqualification
Some people are not eligible; that is, they are disqualified from being a trustee. In some circumstances, though, it is possible to apply for an exemption of the disqualification.
Age
No one under the age of 18 can be appointed as a trustee unless the charity is also a registered company, in which case the Companies Act 2006 allows a minimum age limit of 16 for company directors and so trustees who are also company directors may be appointed at the age of 16.
Charities Act 2011
Some people are disqualified by law from acting as charity trustees, including anyone described in Part 9 Section 178 of the 2011 Charities Act.
That section disqualifies:
- anyone who has been convicted of an offence involving deception or dishonesty, unless the conviction is spent;anyone who is an undischarged bankrupt, or is the subject of a bankruptcy restriction order or bankruptcy restriction undertaking;
- anyone who has made a composition or arrangement with, or granted a trust deed for, his or her creditors and has not been discharged in respect of it;
- anyone who has previously been removed from trusteeship of a charity by the court or the Commissioners; and
- anyone who is under a disqualification order under the Company Directors Disqualification Act 1986 or is the subject of a disqualification undertaking.
For more detailed information, go to Automatic disqualification rules for charity trustees and charity senior positions – GOV.UK (www.gov.uk)
In some circumstances the Charity Commission can give a waiver of disqualification for people disqualified because of one or more of these reasons.
The 2016 Charities (Protection and Social Investment) Act extends the number of criminal offences which lead to someone being automatically disqualified from becoming a trustee to include convictions for serious terrorism offences, money laundering or bribery. It also introduces a process enabling the Commission to disqualify someone it considers to be unfit for trusteeship.
- Someone has been cautioned for an offence against a charity or in the administration of a charity for which a conviction would bring automatic disqualification
- Someone has been convicted of an offence in another country that is against, or involves the administration of, a charity or similar body or if it had been committed here would bring automatic disqualification from acting as a trustee
- Someone has been found by HMRC not to be a ’fit and proper person’ to be a manager of a body or trust
- They were the trustee, officer, agent or employee of a charity who was responsible for, contributed to or facilitated misconduct or mismanagement in a charity.
Governing Document
The governing document of a charity might also contain a provision which prevents certain people from acting as charity trustees.
Criminal Justice and Court Services Act 2000
The Criminal Justice and Court Services Act 2000 disqualifies certain individuals from holding a range of positions in children’s charities, which includes charity trusteeship. The Charity Commission does not have the authority to give a waiver for this type of disqualification.
Suspension or Removal of Trustees
The Charity Commission has power under Part 6 Sections 76, 79, 80, 81 and 82 of the Charities Act 2011 to suspend or remove a trustee from office. It also has the additional power under Part 9 Section 83, if the person is a member of the charity, to remove the person from membership.
Exemption from Disqualification
Waiver of Trustee Disqualification
A person who has been removed as a charity trustee by the Charity Commission, High Court or Court of Session in Scotland is disqualified from serving as a trustee for any charity unless the Charity Commission waives the disqualification. Under the Charities Act 2011 the Charity Commission has to grant any application for a waiver where the person has been disqualified under these provisions for more than five years, unless it has good reason for not granting the waiver.
However the Commission cannot grant a waiver under these provisions where the person would become a trustee of a charitable company, and he or she is an undischarged bankrupt or is disqualified from serving as a company director.
A person wanting to apply for a waiver should contact the Charity Commission for more information.
Disqualification under Company Law as a Director
Company Law applies to all companies, including charities that are formed as a company limited by guarantee. A court may disqualify people from being a company director if they have a:
- Conviction for criminal offences relating to the promotion, formation, management or liquidation of a company
- Conviction for fraudulent trading or fraud
- Record of persistent default on company law requirements such as filing of accounts and other documents
- Record of conduct as a director that makes them unfit to be involved in Company management.
Exemption from Disqualification
As per Waiver of Trustee Disqualification (above).
What can a charitable company do to check that a person is eligible to act as a director?
A list of all disqualified company directors is required to be maintained by Companies House under the Company Directors Disqualification Act 1986.
What can charities do to check that a person is eligible to act as a trustee?
Ask new trustees to sign a declaration to confirm that they are not disqualified from acting as a charity trustee. The Charity Commission has produced a model declaration form CSD 1382.
For the trustees of children’s charities and the trustees of some charities working with vulnerable adults, there are additional, more detailed checks which can be made by obtaining a Disclosure from the Criminal Records Bureau. The Charity Commission strongly recommends that trustees of charities that work with children and vulnerable adults take advantage of this option, to ensure both that the person they wish to appoint as a trustee is eligible and to ensure the safety of the charity’s beneficiaries. More information can be found in section E2 of the Charity Commission’s leaflet CC30.
The Charity Commission maintains a register of all persons who have been removed as a charity trustee by them under Orders made under either the Charities Act 1960 or the Charities Act 1993 or by an Order of the High Court since 1 January 1993. A copy of the register is available for inspection in each of the Commission’s offices. This perhaps is only of use if you live close to a Charity Commission office!