If your group or organisation is a registered charity in Scotland, the Charity Trustees will usually be the members who are elected or appointed to form your governing body. If your group is incorporated, the Charity Trustees will be your Board of Directors. If your group is unincorporated, it will be the committee members.
In Scotland, current charity law (The Charities and Trustee Investment (Scotland) Act 2005) extends the definition of who is a Charity Trustee to include anyone who:-
- has general control and management of the administration of the charity
- exercises significant influence or control on the charity
- has an input into decision-making
All Charity Trustees have a responsibility to take care of the charity's affairs, act as guardians of the charity's assets and safeguard the charity's reputation.
All Charity Trustees are collectively responsible for carrying out general and specific duties defined under the Charities and Trustee Investment (Scotland) Act 2005.
They may delegate tasks to others (as long as the tasks are adequately supervised) but they cannot delegate their duties or responsibilities as Charity Trustees.
Charity Trustee general legal duties
Charity Trustees have four general legal duties:-
- to act in the interest of the charity and put the interests of the charity before any other
- to ensure that the charity operates in a manner consistent with its purposes
- to act with due care and diligence
- to ensure that the charity complies with the current charity legislation in Scotland and with any other relevant legislation
Charity Trustee specific legal duties
Charity Trustees also have a number of specific legal duties under the Charities and Trustee Investment (Scotland) Act 2005. These are:-
- to ensure that the charity’s details (as held on the Scottish Charity Register) are up-to-date and accurate
- annual reporting to the Office of the Scottish Charity Regulator (OSCR)
- seeking consent and notifying OSCR of any changes to the charity
- keeping financial records and accounting
- controlling fundraising activities
- providing information to the public
The Charities and Trustee Investment (Scotland) Act 2005 also requires all Charity Trustees to take reasonable steps to ensure that:-
- any breach of general or specific duties is corrected by the Trustees concerned and not repeated
- any Trustee who has been in serious or persistent breach of duty is removed as a Trustee
It is good practice to include a clause in your group’s constitution (governing document) which permits the removal of any Trustees who are persistently in breach of their duties.
Other Community Toolkit Topics to look at: