Page 40 - Demo

(a) Charitable trust
As we have explored above, one of the key differences between a trust and
a company or CIO, is that a trust’s assets have to be held in the names of individuals on behalf of the trust. Assets are normally held by either the trust’s current managing trustees, or an appointed custodian trustee, or another body (for example an incorporated trustee body (see chapter 1)) on behalf of
the trust.
This means that when new trustees are appointed and old ones retire it is important to check that the assets are transferred into the new names. This is particularly important with land, shares and other investments.
Usually there will be a named of ce holder the “appointor” with the power of appointment and removal, often “the superior general”. The relevant clause
of the governing document may also specify how appointments are to be made (e.g. by memorandum or deed). If the governing document is silent then you will need to rely on provisions of the Trustee Act.
If you have this structure on its own, trustees will usually be appointed and retired by deeds which apart from removing and appointing trustees will also act to transfer ownership of the charity’s assets from one set of trustees to the next.
An alternative is to have stated that the trustees are “The superior general and general council (or other named of cials) ex of cio”. This means that once a person takes on one of these of ces, they automatically become a trustee,
and once they cease to hold such an of ce they are automatically removed. However this is more common in combination with an incorporated trustee body (see next page) in which the assets are vested. If you don’t have an incorporated body you will need to transfer the assets as above from one set of trustees to the next.
Incorporated trustee body. If your charity has a certi cate of incorporation its assets should be held in the incorporated name.
It is prudent to check the process with your legal advisers to make sure that you have the right paperwork for your particular trust, and make sure that the charity maintains control of all its assets. You may also need to update your investment advisers or the land registry of any changes when they occur in
36 Chapter 3