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The power of amendment, which the Commission provides by means of either a Scheme or an Order, gives the trustees wide discretion within the legal framework to amend the administrative provisions in their charity's governing document. By exercising the power the trustees will be able to acquire for themselves additional administrative powers which they regard as necessary in the interests of the charity. |
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You will see that there are a number of issues which are excluded from the scope of the power, whilst others require the prior written approval of the Commission. The trustees must ensure that the power is not exercised in any way which breaches these limitations - these should be taken fully into account every time the trustees are contemplating exercising the power. |
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Examples of the sort of changes which might be made through the exercise of the power are set out below. This list is not intended to be exhaustive: |
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to replace a requirement to audit the accounts with one to comply with their obligations under the Charities Act 1993 (or any other statutory re-enactment or notification of that Act) with regard to: |
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the keeping of accounting records for the charity; |
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the preparation of annual statements of account for the charity; |
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the auditing or independent examination of the statements of account of the charity; |
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the transmission of the statements of accounts of the charity to the Commission. |
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to determine the quorum; |
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to conduct business by correspondence if the constitution requires meetings; |
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to adopt a retirement age for trustees; |
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to enable the trustees to appoint individuals as additional trustees; |
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to authorise a particular borrowing; |
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to authorise the trustees of a charity to transfer its undertaking to another charity, provided that the effect of any such transfer does not alter the purposes for which the property of the original charity may be used, or cut across any express prohibition in an Act of Parliament, or in the trusts of that charity. |
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4. |
An Order may also authorise the trustees to amend specific administrative provisions in the governing document of their charity, which are set out in the schedule to the Order. The specific changes which the Order permits the trustees to make must be made within six months from the date of the Order. These changes will not take place unless and until the trustees decide to make them. |
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5. |
The directions in the Scheme or Order will need to be followed exactly as otherwise any changes made to the administrative provisions of the charity will be ineffective. |
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The trustees have an obligation to send promptly to the Commission a certified copy of every memorandum which amends or adds to the administrative provisions of the governing document. |
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The Commission will not acknowledge receipt of any such document sent to us, but we will update appropriately the entry of the charity in the Central Register of Charities. This does not imply that we have scrutinised the documents, or accepted that they represent a proper exercise by the trustees of the power of amendment. As with the exercise of any power, it is for the trustees to be satisfied that the power of amendment allows them to make the particular amendments or additions, and that it is in the best interests of the charity to make them. Where trustees are uncertain about the prudence or efficacy of an amendment provision, they should seek their own independent advice. |
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8. |
The sealed Scheme or Order and any other documentation showing that the trustees have amended or added to the existing administrative provisions, should be kept in a safe place with the charity's other documents. |
