How a person can be disqualified as a charity trustee, and key checks to make of registers of removed trustees.
Who can’t be a charity trustee
You must be at least 18 years old to be a charity trustee (16 if your charity is a company or charitable incorporated organisation (CIO)).
Some people are disqualified by law from acting as charity trustees, subject to waiver provisions. You can find out about automatic disqualification rules and how they are changing from the 1 August 2018.
It is normally an offence to act as a trustee while disqualified unless the Charity Commission has given a waiver.
Disqualification by the Charity Commission
The Charities (Protection and Social Investment) Act 2016 added new sections to the Charities Act 2011, one of which gives the commission a discretionary power to make a disqualification order where the 3 statutory criteria, set out in section 181 (A) of the 2011 Act, are met.
A disqualification order will state whether the person is disqualified in relation to all charities, specified charities or a class of charities. The period of disqualification depends on the seriousness of the case and can be for a maximum of 15 years.
The effect of being disqualified is that the person is prevented from being or acting as a charity trustee, or a trustee for a charity, in relation to those charities specified in the disqualification order.
While a person is disqualified they will also be disqualified from holding positions with senior management functions (whether paid or unpaid) within the charity or charities concerned, unless the commission includes an exception in the disqualification order that this is not the case.
Find more information about the discretionary disqualification power
Clause in the charity’s governing document
Some governing documents include details on who can or cannot be a trustee which can include rules on disqualification.
If the charity governing document disqualifies an individual from being a trustee, the Charity Commission cannot provide a waiver.
How to check if a prospective trustee is disqualified
Step 1: search relevant registers
Charities can make use of official registers which record the names of people who are disqualified from acting as charity trustees.
The Individual Insolvency Register maintained by the Insolvency Service, which contains details of current and recent bankruptcies and individual voluntary arrangements.
Searches of the register can be made on the Insolvency Service website, by visiting your local Official Receiver’s office, or by post or fax.
The register of disqualified directors maintained by Companies House. Searches of the register can be made on the Companies House website.
The register of all persons who have been removed as a charity trustee either by the commission or by an Order of the High Court since 1 February 1993.
Step 2: ask prospective trustee to sign a declaration
Ask prospective trustees to sign a declaration to confirm that they are not disqualified from acting as a charity trustee.
Step 3: other key checks - safeguarding vulnerable beneficiaries
If there is a legal entitlement to get a DBS check for a trustee role, make sure this is carried out.