Charities Administrative Matters

Administrative

The Authority, as successor to the Commissioners of Charitable Donations and Bequests, has a range of functions in relation to charities. In addition, the Charities Act conferred a much wider range of regulatory functions on the new Authority.

Where a gift or bequest for charitable purposes is made, the Authority must be notified. It has powers to appoint new trustees of charities and to reorganise and incorporate charities.  It may take action to recover charitable funds.  They may institute legal proceedings in matters relating to charities.

A particularly important power is the power to relieve charitable trustees of onerous and unnecessary obligations and to supplement inadequate grants of powers. They may facilitate the sale of assets where the original charity powers are inadequate.  Without orders of the Authority, the original powers in the charitable trust may be totally inadequate.

Certain Agreements Restricted

There are restrictions and conditions on persons entering agreements for the provision of services to charity in consideration of payments from the charitable funds.  The agreement must be in writing.  It must not exceed what is reasonable and proportionate having regard to the service provided.

There are restrictions and conditions on entering agreements with persons connected to trustees.  They must not in any way vote in favour of the proposal and non-interested trustees only must approve.

The regulatory authority may issue directions and guidelines regarding agreements of the above type.  The provisions do not cover ordinary employment contracts or trustees or lawful remuneration.

Power to advise charity trustees

Where the trustees of a charity apply to the Charities Regulatory Authority for their opinion or advice respecting the charity or the administration thereof or the property thereof or the application of the property or any question or dispute relating thereto or where the executors of a will containing a charitable devise or bequest apply to the Charities Regulatory Authority for their opinion or advice respecting the devise or bequest or the administration thereof or the application thereof or any question or dispute relating thereto, the Charities Regulatory Authority shall consider the application and may, if they think fit, give such opinion or advice as they think expedient.

Where the Charities Regulatory Authority give their opinion or advice in relation to any matter, a trustee, executor or any other person who during any period (not being a period after the making of an order in relation to the matter by a Court of competent jurisdiction) acts on or in accordance with the opinion or advice shall, in respect of his so acting during that period, be deemed, so far as respects his own responsibility, to have acted in accordance with his trust.

This provision shall not indemnify a trustee or other person for any act done in accordance with an opinion or advice of the Charities Regulatory Authority, if he has been guilty of fraud, wilful concealment or misrepresentation in obtaining the opinion or advice.

Compromise of claims by or against a charity.

If it appears to the trustees of a charity that any claim against a person in relation to the charity may, with advantage to the charity, or should, in the special circumstances of the case, be compromised, the trustees or that person, with the consent of the trustees, may submit to the Charities Regulatory Authority a statement and proposal for a compromise.

If it appears to the trustees of a charity that any claim by any person against the charity or them may, with advantage to the charity, or should, in the special circumstances of the case, be compromised, the trustees or that person, with the consent of the trustees, may submit to the Charities Regulatory Authority a statement and proposal for a compromise.

Where the Charities Regulatory Authority, after such inquiry as they think necessary, are of opinion that the proposal, with or without modification, is fit and proper and for the benefit of the charity, the Charities Regulatory Authority may make such order in relation to the compromise as they think fit.

Recovery of charitable gifts improperly withheld, concealed, or misapplied.

The Charities Regulatory Authority may, with the previous consent of the Attorney General, sue for the recovery of any charitable gift intended to be applied in the State which is improperly withheld, concealed or misapplied. The Charities Regulatory Authority shall apply every charitable gift so recovered by them to charitable purposes according to the intention of the donor.

The Charities Regulatory Authority may deduct from any charitable gift recovered by them under this section all costs, charges and expenses incurred by them in such recovery.

Whenever any sum is payable to or for any charitable purposes, the Charities Regulatory Authority or the trustees of the charity, with the consent of the Charities Regulatory Authority, may sue for and recover it, from the person for the time being liable therefor or whose duty it is to pay it, as a simple contract debt in any Court of competent jurisdiction without obtaining the consent of the Attorney General.

Power to authorise or direct institution of legal proceedings

If it appears to the Charities Regulatory Authority desirable that legal proceedings should be instituted with respect to any charity by any person, other than the Attorney General, the Charities Regulatory Authority may authorise or direct those legal proceedings to be instituted and give such directions in relation thereto as they think proper, and thereupon such legal proceedings may be instituted.

If in any case it appears to the Charities Regulatory Authority desirable that legal proceedings with respect to any charity should be instituted by the Attorney General, the Charities Regulatory Authority may certify the case, to the Attorney General, with such statements and particulars as may in their opinion be required for the explanation of the case.

Where a case is so certified to the Attorney General, he may, if he thinks fit, institute such legal proceedings as he considers proper in the circumstances of the case.

Power to apply for conduct of suits for carrying out trusts of wills in case of delay.

Where a person has by will left any property for charitable purposes, and a suit for the administration of the assets or carrying out the trusts of the will has been instituted by the personal representative of that person, the Charities Regulatory Authority (though not parties to the suit) may, on the ground of delay, apply to the Court in which the suit is pending to have the conduct of the suit transferred to the Charities Regulatory Authority.

Thereupon the Court, if of opinion that there has been undue or improper delay in proceeding with the suit, may give the conduct of the suit to the Charities Regulatory Authority, or impose on the party having the conduct of the suit such terms as it deems necessary for bringing the suit to a speedy termination,
and may make such orders on the application as the Court thinks fit.

Power to apply for transfer of unapplied charity fund in Court.

Where any fund, standing to a separate credit in any matter within the jurisdiction of a Court, for the benefit of a charity or impressed with a charitable trust remains unapplied, the Charities Regulatory Authority may apply to that Court for the transfer to them of the fund, to be held by them upon the charitable trust affecting the fund, and thereupon the Court may make such order as to the transfer of the fund to the Charities Regulatory Authority or otherwise (including the payment of costs out of the fund) as the Court thinks fit.

Any person in whom any land or fund is vested in trust for any charitable purpose may, with the previous consent in writing of the Charities Regulatory Authority, transfer all or any part thereof to the Charities Regulatory Authority to be held by them for that purpose.

Where a charitable gift was originally vested in more than one trustee and not more than six trustees, a transfer shall not be made so long as there are fewer trustees than the original number appointed to act in the trusts or execution of the charitable gift or without the consent of all the trustees having first been signified in writing signed by them, such writing to be deposited with the Charities Regulatory Authority.

Authorising Investments, Sales, Leases I

The Charities Regulatory Authority may, in their discretion, invest any fund held by them upon any charitable trust in such manner as they think proper. The Authority may, if they think fit, on the application of the trustees of any fund held upon any charitable trust, by order confer upon the trustees, either generally or in any particular instance, power to invest the fund in such manner, on such terms and subject to such conditions as the Charities Regulatory Authority may think proper.

Where an application is made to the Charities Regulatory Authority by the trustees of any charity comprising land representing that a specified disposition of the land can be effected on terms which would be advantageous to the charity, the Charities Regulatory Authority may, if they think fit, inquire into the circumstances, and if, after inquiry, they are satisfied that the proposed disposition would be advantageous to the charity, they may authorise the applicants to make that disposition and give such directions in relation thereto and for securing the due investment of the money arising therefrom, for the benefit of the charity, as they think fit.

The Charities Regulatory Authority may if they think proper, authorise, with retrospective effect, a specific disposition made without such authority. If it appears to the Charities Regulatory Authority in respect of any charity comprising land of which they are trustees that any disposition of the land would be beneficial to the charity, they may make that disposition of the land and the money arising therefrom shall be invested for the benefit of the charity in such manner as the Charities Regulatory Authority thinks fit.

Authorising Investments, Sales, Leases II

If it appears to the trustees of any charity comprising land that the doing of any act to which this section applies would be for the benefit of the charity, they may lay before the Charities Regulatory Authority a statement and proposal in relation to the doing of that act, and thereupon—

• the Charities Regulatory Authority, if they think that the doing of the act to which the statement and proposal relate (with or without modifications or alterations) would be beneficial to the charity, may make such order for or in relation to the doing of the act and any circumstances connected therewith, as they think fit, though the act is not authorised or permitted by the trust;
• the Charities Regulatory Authority may by that order authorise the application of any moneys belonging to the charity for the act, and, if necessary, may authorise the trustees to raise any sum of money by mortgage of all or any part of the land of the charity.

All sales, leases, exchanges and other transactions authorised by the Charities Regulatory Authority under this Act shall have the like effect and validity as if they had been authorised by the express terms of the trust affecting the charity.

Giving Receipts / Taking in Deeds

Where a person is liable to make any payment to or for any charitable purposes, and difficulty arises in making the payment by reason of the death, absence, incapacity or non-existence of a person competent to give an effectual discharge, the Charities Regulatory Authority may, if they think fit, accept the payment (to be applied by them according to the trusts affecting it) and the receipt of the Charities Regulatory Authority shall be an effectual discharge to the person making the payment.

t shall be lawful for trustees or other persons having the custody of any deeds or muniments of or relating to a charity to deposit them for security in a repository which may be provided by the Charities Regulatory Authority, subject to any regulations made by the Charities Regulatory Authority under this Act.

Power to appoint new trustees of Charity

Where for any reason the appointment of a new trustee or new trustees of any charity appears to the Charities Regulatory Authority to be necessary, the Charities Regulatory Authority  on the application of the trustee or trustees of the charity, or if there are no trustees of the charity, or they cannot be found, on the application of any person having an interest, or  in any case, of their own motion, may make  an order under the seal of the Charities Regulatory Authority appointing a new trustee or new trustees of the charity either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.

Every trustee of a charity appointed under this section shall, as well before as after the property of the charity becomes by law vested in him, have the same powers, authorities and discretions, and may in all respects act as if he had been originally appointed a trustee by the instrument (if any) creating the trust.

The Charities Regulatory Authority shall not less than one month before the date on which they propose to make an order under this section, give public notice of the proposed order, and  on the day immediately following the date of the making of the order, give public notice of the making, and of the date of the making, of the order, in such manner as the Charities Regulatory Authority consider most effectual for ensuring publicity for the proposal or order, as the case may be; and for bringing it to the attention of persons interested.

Any person having an interest may, within twenty-one days after the date of the making of an order under this section, appeal to the High Court against the making of the order and on such appeal the High Court may make such order confirming, annulling or varying the order under this section and such order as to costs as it thinks fit.

Power to apply to High Court for directions.

In every case of a breach or supposed breach of any trust for charitable purposes or whenever the direction or order of the High Court is considered necessary for the administration of any trust for charitable purposes, the Charities Regulatory Authority or, with the consent of the Attorney General, any person may apply to the Court for such relief as the nature of the case may require and the Court may make such order thereon as the Court thinks fit.

Duty of executors to publish advertisements of charitable devises and bequests.

Whenever there is contained in any will a charitable devise or bequest, the person (in this section referred to as the personal representative) to whom probate of the will or letters of administration with the will annexed is granted shall, subject to any exemption granted by the Charities Regulatory Authority, do the following things—

within three months after the grant of probate or letters of administration, publish once in Iris Oifigiúil and three times successively in some newspaper circulating in the locality where the devise or bequest or the greater part thereof is directed to be expended or applied, or if there is no direction as to any such locality, then in some morning newspaper published on every week-day in Dublin, the following particulars

• the devise or bequest contained in the will,
• the name of the testator,  the date of the will,
• the name of the person to whom the devise or bequest is given,
• the name of the person appointed by the testator for the management and direction of the devise or bequest; and within four months after the grant of probate or letters of administration,

He shall deliver at the office of the Charities Regulatory Authority or forward to them by post three papers (other than Iris Oifigiúil) containing the successive publications.

If a personal representative fails to comply with the above obligation, he is  guilty of an offence The expenses incurred by a personal representative in complying with the obligation  shall be paid by him out of the estate or funds devised or bequeathed to the charity concerned.

The Charities Regulatory Authority may, in their discretion, having regard to the amount of any charitable devise or bequest or other special circumstances, exempt any person from the obligation imposed either wholly or to such extent and upon such terms as they think fit

Legal Proceedings

Before any legal proceedings (except legal proceedings instituted with the authority of or by the direction of the Charities Regulatory Authority) in relation to any charity are commenced by any person except the Attorney General, that person shall transmit to the Charities Regulatory Authority notice in writing of the proposed legal proceedings and such information as may be requisite or proper or may be required from time to time by the Charities Regulatory Authority, for explaining the nature and objects thereof.

The above does not make any order in any proceedings in which the Charities Regulatory Authority have not been made parties binding and final as against the Charities Regulatory Authority.

Power of majority of two-thirds of trustees to deal with charity property.

Where the trustees of a charity have power to determine on a disposition of any property of the charity, a majority of two-thirds of the trustees assembled at a meeting of their body duly constituted shall have legal power, on behalf of themselves and their co-trustees, to do, enter into, and execute all such acts, deeds, contracts and assurances as may be requisite for carrying into legal effect any disposition of the property, and all those acts, deeds, contracts or assurances shall have the same legal effect as if they were respectively done, entered into, or executed by all the acting trustees for the time being.

Resignation of a member of governing body and filling of vacancy

The following provisions shall apply in relation to a corporation established by Act or charter as the governing body of a charity—

• a member of the corporation may resign his membership by giving to the corporation not less than one month’s notice in writing of his intention to do so;
• the corporation may appoint another person to be a member of the corporation in place of a member so resigning.