Are you a Faithful or a Traitor?

Why the basics of taking and implementing decisions matters 

When your job is to secure legacy income for your charity, making sure decisions are taken with appropriate authority and implemented appropriately is crucial.  Failures to take decisions properly or to execute documents correctly could cause delays, uncertainty, potentially financial loss to your charity and, in a worst-case scenario, personal liability for you.  A clear scheme of delegation can help make sure matters are dealt with properly.

1. Power to delegate 

Charity trustees have the general control and management of the administration of a charity.  The vast majority of the powers of the charity sit with the trustees, unless they have a power of delegation and they exercise that power.  However, even once they have delegated a power, charity trustees remain ultimately responsible. 

The basis upon which charity trustees have a power of delegation, and the extent of that power, will depend on the charity's legal form and the terms of its governing document.  Charities can take a variety of legal forms, including a charitable trust (with either individual trustees, incorporated trustees or a corporate trustee), a charitable company, a charitable incorporated organisation, a Royal Charter body, an unincorporated association, a statutory corporation and more.  A charity's governing document (such as its trust deed or articles of association) can also include permissive delegation powers or impose restrictions which limit trustees' power to delegate.   

2. How to exercise the power of delegation

The Charity Commission's guidance, the Essential Trustee, notes that:

'Delegation can help trustees to govern more effectively, but they cannot delegate their overall responsibility. Trustees always remain collectively responsible for all decisions that are made and actions that are taken with their authority. [Trustees] should set out in writing the limits of any delegated authority. [They] should also put clear reporting procedures in place, so [they] can ensure the delegated authority is exercised properly. … A periodic review of any delegated authorities can help to ensure that those authorities are properly managed.'

Whilst delegation can be documented in a variety of ways, such as committee terms of reference, job descriptions or trustee resolutions, in our experience, delegation works best when it is documented in a comprehensive scheme of delegation.  This will be approved by the trustees, regularly reviewed and set out clearly which matters are reserved to the board and which matters are delegated. 

Delegation within charities generally requires a delicate balancing exercise to be undertaken by the trustees.  On the one hand, trustees will be keen to ensure that there are appropriate scope, limits and checks, as well as oversight and reporting mechanisms, for their delegated authorities; this is important to ensure the charity is not exposed to undue risk or liability as a result of delegated powers.  On the other hand, trustees will want to provide for smooth, efficient operation of their charity via their delegations, and will not want to create unnecessary blockages or red tape in the internal frameworks they create within their charity.  

This will inevitably mean that there is a tiered decision-making framework with matters escalated based on financial value, legal or reputational risk, legal requirements and/or complexity.  The Charity Commission advises that 'high risk and unusual decisions should not be delegated' and trustees should 'agree appropriate guidelines to help assess what is likely to be high risk or unusual.' This helps to ensure that:

• Routine matters are handled at legacy-officer level
• More complex or higher‑value issues are escalated
• High-value, unusual or high‑risk matters are referred to trustees

This protects the charity and empowers legacy officers by making authority clear.

Whatever is ultimately decided in terms of particular delegations, and where the balance should lie with delegated authorities, these should almost always:

• be set out formally;
• be clear and easy to understand in terms of the scope, and any related limits or conditions, and to whom a particular delegation applies;
• clarify whether a particular delegated power constitutes the actual taking of a decision or the implementation of a decision which has already been made (this is a distinction which can often become blurred); and  
• build in sufficient oversight and monitoring for the trustees, given their overriding responsibility for the operation of the charity.

In all cases, a delegation framework must reflect your charity's legal structure and comply with your charity's governing document, charity law and Charity Commission guidance.  Given the differences in legal structure and governing document amongst charities, a delegation framework which works for one charity, may not work for another.  

3. Important areas to consider when reviewing your delegation framework  

In the course of advising charities, we frequently consider the scope of any delegated authority.  In the context of legacy administration, the following are the key areas which come up:

• Legacy Administration – legacy officers need to act quickly and efficiently when managing an estate – whether they are giving instructions to lay executors, professional executors or taking decisions where the charity is executor.  Uncertainty about decision-making authority can cause delays or risk invalid decisions being taken and therefore it is important to ensure that delegations in this area are regularly reviewed and updated.
• Foreign Estates – when dealing with legacy income from a foreign estate, legacy officers need to grapple with both English charity law, as well as the foreign laws, seeking the benefit of foreign legal advice. In these situations, legacy officers need to be clear on the requirements which apply to their charity – for example, in relation to valid execution – to ensure that all steps taken are valid.
• Contested Estates – all litigation can have serious financial and reputational consequences for a charity, and legacy disputes are no exception.  There are a number of aspects to litigation in relation to a legacy which need to be carefully considered in a scheme of delegation.   Legacy Officers need to be clear on when they have authority to take action or decisions, when it needs to be escalated to the Head of the Team (or equivalent) and then ultimately up to the trustees.
• Ex Gratia Payments – the provisions of the Charities Act 2022 introducing a regime for small ex gratia payments finally came into force on 27 November 2025, but not for all charities.  These changes are also due to be reviewed in 2027, and so further changes may occur in future. Please see our page on ex gratia payments for more details on the new provisions   
• Land Disposals – the Charities Act 2011 contains strict rules on the disposal of charity property which can apply in a legacy context.  These were amended by provisions of the Charities Act 2022 which came into force in June 2023.  We are still seeing charities and practitioners getting used to the changes – particularly where they are using old precedents or do not regularly deal with charity property disposals.  Failure to comply with the provisions in the Charities Act can mean that land transactions may be void. 

4. Execution of documents

Not only should a decision be taken with proper authority, that decision must be implemented appropriately. As mentioned above, a good scheme of delegation will distinguish between taking of a decision and implementing a decision.  Typically, a decision can be implemented by someone less senior – for example, a legacy officer proceeding to instruct solicitors after the Head of Legacies decided that it was necessary to do so.  

However, when it comes to execution, care must be taken to ensure that legal documents are signed appropriately and this will vary depending on the legal form of the charity.  Legacy officers must ensure that the correct rules are followed. 

In particular, we often see mistakes in relation to the execution of documents by charitable companies where there is little flexibility as a result of provisions of the Companies Act 2006. 

A contract can be signed on behalf of a charitable company by anyone with appropriate authority – but, a deed, can only be executed in a particular way by certain people: 

• A trustee (being a director under company law) in the presence of a witness; 
• Two trustees or one trustee and the company secretary; 
• Affixing the charity's seal in the presence of an authorised person; 
• An attorney appointed in accordance with a power of attorney (executed as a deed) in accordance with the terms of that power of attorney. 

Key takeaway: if it must be signed as a deed, you almost always need at least one trustee to sign.

Key takeaways and top tips for legacy officers

1. Know your charity’s structure and governing document. It determines who can delegate—and what they can delegate.
2. Never assume authority. If delegation isn’t explicit, decisions may be invalid.
3. Ensure delegations are clearly documented. Good governance protects both legacy officers and trustees.
4. Make sure there are clear escalation procedures for complex matters. Especially for land disposals, ex gratia payments, foreign estates, or contentious estates.
5. When signing deeds, make sure the person signing has authority by law to do so. You will almost always need to involve a trustee when signing a deed.

<< BACK TO HOMEPAGE