Guardians of the Charitable Realm: Charitable Trust Supervision Practice and Procedure in the Common Law World

Abstract

This article examines the control framework for the supervision and oversight of charitable trusts in the common law world. It outlines in Section 1 the fundamental differences between private and public trusts that necessitate a separate enforcement regime for charitable trusts before exploring in Section 2 the historical and political powers and duties of the Attorney General as parens patriae of charities. In light of the limitations of the Attorney General’s effective scrutiny, Section 3 considers the emergence of alternative charity regulators – from tax authorities to independent charity commissions – comparing the relative regulatory achievements of these agencies with that of the Attorney General (AG). Section 4 turns its attention to the role of the courts and tribunals in the enforcement of the interests of donors, beneficiaries and charitable entities. The article concludes in Section 5 with a discussion of the merits and demerits of the charitable trust vis-à-vis the public benefit foundation and explores whether civil law systems intent on adopting the trust need to rethink their enforcement options when it comes to charitable trust enforcement.