You could be forgiven for thinking that recruiting a new trustee for your charity is a pretty straight-forward process.

Happily you would be largely correct!  But do watch out for some legal pitfalls.

Take time and be careful, as illegal or unconstitutional trustees will cause your charity serious problems.

Getting it right in the first place

Your starting point must be your charity’s governing document.  Check:

• any maximum and minimum number of trustees
• who can appoint them and how – especially whether there is a power to co-opt trustees
• what happens about trustee retirement and re-appointment at your next AGM

Your governing document is your charity’s holy grail.

Taking the right steps

Next, you will find a lot of useful information and pointers in the Charity Commission’s guidance CC30 “Finding New Trustees”.

This includes cautionary steps including:

• vetting potential trustees
• checking that they have not been disqualified from acting as trustees
• asking them to consider and declare any existing or potential conflicts of interest

You should ensure your new trustees sign the Charity Commission’s Trustee Declaration of Eligibility and Responsibility, which you should then lodge with the Commission.

Protecting the vulnerable

If your charity works with children or vulnerable adults you must address safeguarding and eligibility issues. (These are highlighted in the Declaration of Eligibility and Responsibility.)

A lot of your charity’s work will fall into the definition of a “regulated activity” which is “work that a barred person must not do”.

There is a legal requirement to ensure that no-one on the barred lists kept by the Disclosure and Barring Service is allowed to work or volunteer in a “regulated activity”.

Even though trustees are not employees, it is best practice to request DBS checks for all incoming trustees of a children’s or vulnerable persons’ charity.

Responding proportionately

What happens if your checks disclose a criminal record? Don’t panic!

If an offence has led to a barring order, that is the end of the matter.

Otherwise, a criminal record does not of itself prevent someone being a trustee unless it is an unspent conviction for an offence involving dishonesty or deception. This is an automatic statutory disqualification.

A chequered past?

There is no obligation on a trustee candidate to disclose a spent conviction. If this concerns you, here is some guidance.

The Rehabilitation of Offenders Act 1974 enables some criminal convictions to be ignored after a rehabilitation period, so that people do not have a lifelong blot on their records because of a relatively minor offence in their past.

So throw in some compassion. Be objective and carry out a risk assessment. Manage this risk as you would any other.

Your trustees are the life-blood of your charity. Don’t waste them.

So, are your trustees above board?

Now that you’ve given it some though, are all your trustees validly appointed?  Congratulations!  This is a good moment to review whether you also have these seven critical ingredients of good governance in place.

Or it not, and you’ve realised that you have somehow transgressed and your trustees may be illegal, again, don’t panic – but do take things seriously.

It’s important to take action, and you may well need legal advice.

I can find you cost-effective and knowledgeable lawyers and save you money by ensuring your instructions are well-crafted and complete.

I can also help you review and update your procedures and your governing document, to support you in getting these decisions right, first time, every time.

I am here to help.  Do get in touch.

The following two tabs change content below.

• Bio
• Latest Posts

Geoffrey Hand

Geoffrey Hand is a charity governance consultant, offering governance consultancy and training. He also provides legal services management, helping charities get better value for money from their lawyers. Geoffrey has extensive experience in the charity and legal worlds, and his mission is to help charities deliver good governance.

Latest posts by Geoffrey Hand (see all)

• Your charity’s reputation – no amnesty for charity trustees - 05/05/2022
• Kids Company Charity Trustees are vindicated – but what about charity governance? - 26/02/2021
• Your Charity’s CEO – Mainstay or Over-stay? - 27/01/2021