One of the issues we are most often asked about is about the relationship between the “trustees” of the church and the people responsible for its spiritual oversight – i.e. its pastor, minister, elders or other spiritual leadership team. This is a tricky question, and there is no perfect answer to it. The article below helps you navigate the legal issues, as a starting point.

Is a church always a charity?

The issue of trusteeship arises because most churches are also charities, by definition. Charities are required to have trustees, as a matter of law. As the law stands, it would be extremely difficult to argue that a church was not a charity and therefore didn’t need to have trustees.

Trustees – who are they?

Sometimes people think that the trustees in a church are just the people who are in charge of the bank account, or whose names are on the property deeds. In other words they get on with the legal stuff in the background, but don’t have much impact on the church’s normal activities.

But the legal definition of a trustee is someone who has the “control and management” of a charity. This is a functional test – in other words, if there are people who have ultimate responsibility in the church, so that control of major decisions rests with them, it is likely that they will be treated in law as being trustees, whether or not they have been formally appointed to the role.

One of the main duties of trustees is to ensure that the charity is fulfilling its charitable purposes. For a church, the purposes are likely to be stated as something like “advancing Christianity for the benefit of the public”. So the trustees are the people who are ultimately responsible for overseeing how best the church should advance the Christian gospel. The trustees’ role is a strategic one, not a purely practical one.

At that point it becomes clear that the responsibility of being a trustee affects every aspect of church life, and especially things like how people are discipled, what evangelistic activities the church might do, and whether it will be involved in planting other churches. The “legal” issues and the “spiritual” issues are intrinsically connected.

Can spiritual leaders choose not to be trustees?

Having considered what being a trustee means, many churches conclude that the trustees

should be the same group of people as the spiritual leaders. In practice, this will mean:

  • Checking that someone is eligible to be a trustee before they are appointed to the leadership team
  • Making sure the members of the leadership team are aware of their responsibilities as trustees, and receive an induction and training as required;
  • Deciding how the spiritual leadership team is going to delegate to other members of the church, whether staff or volunteers; and
  • Dealing with whether spiritual leaders are to be paid for their role in the church – see below for further details.

But some churches are wary of this kind of structure. They may feel that the spiritual leadership team should not be distracted by legal responsibilities, and should be freed up to focus on preaching, teaching and pastoral work. Sometimes people are concerned about all decision-making power resting with a small group of individuals. Or the spiritual leaders themselves may feel that they lack the skills and expertise needed to be a trustee.

It is possible to separate out the role of spiritual leadership from that of trusteeship. Doing so will require the church to think carefully about what the spiritual leader is being asked to do, and what the limits are on their responsibilities. In legal terms, they will be acting on delegated authority from the trustees – in other words, they will remain accountable to the trustees for their actions as spiritual leader. It would be completely appropriate for the spiritual leader to be in charge of things like the preaching programme or the way in which pastoral care is carried out, for example, as long as there is some mechanism for the trustees to check that these things are being done well. The trustees can ask the spiritual leader for their input into major decisions, too – but ultimately, the decision will rest with the trustees.

In answer to the concern about the concentration of power, there are other ways of safeguarding against this. You may decide that the church members should take the really big decisions in church life. Some decisions may be subject to a “veto power” held by a third party – such as in relation to the sale of the church’s premises, or the appointment of new trustees.

If the spiritual leaders are concerned about being distracted by trusteeship, they need to think carefully about how to delegate the practicalities of things like HR issues and property maintenance to other people. They can usually then oversee the way in which those things are being carried out. There are a few matters that the trustees cannot delegate, in legal terms, but most charities operate on the basis that much of what actually happens on a day to day basis is carried out by the staff team – churches need not be any different.

Can we have trustees who are not spiritual leaders?

Here the issue is the extent to which the church is happy for people who are not in a spiritual leadership role to have ultimate decision-making responsibility in the church. It may well make sense to invite a small number of people who have particular areas of expertise to be trustees, alongside the spiritual leaders. Each church and leadership team will need to weigh up for themselves whether their theology of church leadership allows for this.

In any event, it is worth thinking carefully before allowing the “non spiritual leaders” to form a majority on the trustee board, and so outvote the spiritual leaders. Doing so would again mean that in effect the control of the church rests outside the spiritual leadership team. While this can be made to work, it takes a great deal of relational and pastoral wisdom, and is likely to lead to tension and difficulties in the strategic direction of the church.

Can trustees be paid?

The normal rule is that trustees cannot be paid, either for acting as trustees or for some other role within the charity, such as that of pastor or minister. The only way of allowing an exception to this rule is by providing for it in the church’s constitution, or otherwise obtaining the Charity Commission’s consent. The same rules apply to people who are connected to a trustee e.g. a decision to appoint a trustee’s immediate family member to any employment role, or provide them with other benefits such as accommodation.

The Charity Commission accepts that in a church at least one or two people are likely to be appointed as pastor or minister, and need to be paid if they are carrying out those roles as all or part of their work. However, the Commission is very unlikely to approve a situation in which the paid trustees outnumber the unpaid trustees. You will usually need to ensure that the majority of trustees are unpaid.

Even with the right authorities in place, the trustees still need to manage conflicts of interest arising out of decisions that relate to the paid trustee or the person connected to them. The trustee in question should not participate in any discussion or decision relating to their own pay or other benefits, or benefits to a connected person. Those decisions should be made by the other trustees.

Conclusion

There are some difficult challenges to wrestle with as a church thinks through who its trustees should be, and how the biblical principles sit alongside the legal requirements. Please feel free to get in touch with us if the note above does not address your situation, and you need more detailed advice.

 

Caroline Eade
Edward Connor Solicitors

This information has been provided by solicitors working for Edward Connor Solicitors. It is designed for the purpose of knowledge sharing only and does not constitute legal advice.

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