All charity trustees have legal duties and responsibilities under the 2005 Act. A duty is something that you must do, and all the duties must be met. These duties are separated out into general duties, that set out a broad framework that all charity trustees must work within, and specific duties detailed in the 2005 Act.
The general and specific duties apply equally to all charity trustees and to all charities registered in Scotland. All of the charity’s trustees should work together to make sure that these duties are met.
We, the Scottish Charity Regulator, work with charity trustees to make sure these duties are understood and complied with. We also have powers to take action where we have concerns about particular charities and their trustees. See our Inquiry Policy for more details.
In this section we explain what the duties are, what the law says you must do and ways that you can meet the duties.
The charity trustee duties under the 2005 Act set out a broad framework that all charity trustees must work within.
Where you are faced with a decision where one option would be in your interest and the other in the interest of the charity you must choose the option that is in the charity’s interest. To do this properly, you must declare what your interests are, know when it would be better that you did not take part in certain decisions and take appropriate action.
If you are at all unsure, you should declare a potential conflict and the other charity trustees can decide whether it poses a conflict.
Your charity’s purposes are set out in your governing document (often called a constitution, trust deed or articles of association).
See the governing document and meetings section for more details.
The role of a charity trustee will vary from charity to charity. Some charities have staff who are responsible for daily operations, with the charity trustees providing strategic oversight and governance. Other charities are run solely by charity trustees on a voluntary basis. Whatever your charity trustee role involves – hands on or strategic oversight – the decisions you make about the charity should show that you are acting with care and diligence that is reasonable to expect of a person who is managing the affairs of another person.
When you are dealing with the charity’s affairs, you should do so as carefully as you would if you were looking after someone else’s affairs, for example a relative or a friend.
As charity trustees:
As charity trustees, you should:
You do not need to be a legal expert yourself but you should know the basics and the laws that apply to your charity’s activities and where to get help if you need it. See the Sources of help, advice and best practice for details of organisations that can help.
As a charity trustee, you are required to act in the interests of the charity.
A conflict of interest which arises between a charity trustee and a person or organisation that appointed them is called an 'appointment conflict'. Where such a conflict arises, the charity trustee must put the interests of the charity first. However, where another duty prevents the charity trustee from putting the interests of the charity first they must:
Conflicts of interest can and do happen in all shapes and sizes of charity, so we have a separate section of the guidance for how to manage them. See the conflict of interest section for more details.
Charitable companies also need to be aware of what Company law says about conflicts of interest.
See the specific duties section below for more information.
There are specific duties in the 2005 Act that all charity trustees must meet. You might delegate the practical details of these duties to your charity’s staff, volunteers or professional advisers (if you have them), but you, as charity trustees, are responsible for making sure the specific duties are met.
Your charity must give us the information we need to keep the Scottish Charity Register accurate and up to date.
This means making sure that we hold the latest information about your charity:
Your charity must tell us as soon as possible about any changes to the principal contact for the charity.
If you want to make any changes to your charity, first check what the rules set out in your governing document say. If you do not follow these rules then any decisions you make could be invalid and we may refuse our consent to make the changes if it is required.
Under the 2005 Act you must seek our consent before making any of the changes listed below. You need to ask for our consent at least 6 weeks (42 days) before you plan to make the proposed change.
Changes that need our consent are:
If we consent to the change you must notify us (tell us in writing) once you have made the change. Where a change to the governing document has been made you should send us the updated version.
If you have the power to make other changes to your governing document(that do not need our consent) you must tell us what the changes are and send an updated version of your governing document within 3 months of the changes being made.
See the flowchart below to decide if you can make changes and if so how. See our Making Changes to Your Charity page for more details.
Every year, every charity must:
You must keep a copy of the accounting records for at least six years. Other laws or funding arrangements might require you to keep records for longer.
As charity trustees you are responsible for taking control of how your charity raises funds.
You must make sure that anyone who professionally raises funds for the charity has an agreement that says how much they will get paid to do it.
See our Fundraising Guidance for more details.
There is information that you must to give to the public:
Good practice is to publish your governing document and accounts on the charity’s website, if you have one.
What is an unreasonable request?
What is reasonable or unreasonable will depend on the circumstances of each case. It is important to understand that it is the request that must be unreasonable not the reasons for the request or the identity of the requester.
The examples below are when a request might be unreasonable:
If you decide a request is unreasonable you should be able to justify your decision, bearing in mind that a concern could be raised with us about it. Where appropriate you should work with the requester to fulfil their request.
Can you charge a fee for the request?
Yes, you can, but only for any administrative costs in producing and sending a copy of the document, for example, the cost of photocopying and postage. You cannot charge for the costs associated with preparing the accounts or staff time taken to copy and post the documents.
Many charities publish their governing document and annual accounts on their own websites. You can put a link to your accounts on your entry in the Scottish Charity Register by emailing us the link and your charity’s details.
If you fail to comply with these duties then this is misconduct and we do have powers to take action against charity trustees, where appropriate. Our response will be proportionate depending on the situation.
Where a charity trustee has acted reasonably and honestly it is unlikely to be treated as misconduct.
Find out more about what we can and cannot do and what to expect if we have a concern about your charity.
These organisations can help with some or all of the duties.
Here we set out the specific sections of charity law in Scotland relevant to each part of the guidance.