Reasons to choose Wilson Browne
In order to identify how to appoint or remove a trustee, you will need to refer to the charity’s governing documentation and be mindful of the legal structure of the charity.
There are restrictions in legislation as to how many Trustees a charity can have but there may also be further restrictions found within the charity’s governing documentation.
If the charity is unincorporated then there are four ways in which a Trustee can be appointed or removed:
Express provisions in the charity’s governing documentation
Well drafted documentation will include the specific guidelines for the appointment and removal of Trustees. Usually the documentation will allow:
- The first Trustees to be appointed by specifically naming them
- The power for Trustees to appoint other Trustees. However, it could be the settlor or family of the charitable trust who have the power to appoint Trustees and therefore this may not be possible.
- Trustees to resign voluntarily with written notice. Nevertheless, it is vital that the charity remains quorate and therefore a sufficient number of Trustees must still remain in post.
- Rules in which a Trustee will cease to hold office (for example if they should lose capacity or following disqualification).
- Specify whether the Trustees appointments are to be for a fixed term (i.e three years) or rotational.
Alternatively, a Trustee may be appointed or discharged by resolution following the signed Deed of Memorandum.
If the governing documents don’t include express provisions for the appointment and removal of Trustees, you can use the powers from s36 Trustees Act 1925 to replace a current Trustee. This appointment must be in writing and this would enable the new Trustee to have the same powers as their fellow Trustees.
The Charity Commission
The commission has the power to issue orders under its concurrent jurisdiction with the High Court to remove and appoint Trustees. This may be because a formal inquiry has been initiated by the commission into the affairs of a charity.
The High Court
When there is no sufficient method of appointing a Trustee, you can refer the matter to the High Court who have the Statutory Powers to appoint and replace current Trustees. The Court may use its inherent jurisdiction to replace and remove Trustees if required to ensure the Charity is administered properly.
It may be necessary for a Trustees to be removed because they have lost capacity. Within unincorporated charity’s governing documents there should be specific provisions which require a Trustee to retire automatically in the event that they should be deemed to have lost capacity.
As a general rule, the Trustee cannot delegate their powers, but if the Deed establishing the Charity does allow so, a Trustee can delegate their authority to another person for a maximum of 12 months. However, when making this decision to delegate, the Trustee should be mindful of whether this is in the best interests of the charity.
The board of Trustees may decide that it is not in the best interests of the charity due to the fact that the Trustee who lacks capacity is unable to fulfil their duties and responsibilities. Generally, it is best practice for a Trustee to be removed from their role or asked to resign rather than delegating their duties.