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May Board change restrictions on endowment?

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May Board change restrictions on endowment?

I am president of a 501(c)(3) that has a true endowment to provide scholarships to a specific university. The initial $50,000 contribution in 1993 has grown to over $106,000. We would like to expand the giving beyond the restrictions given by the original donor and give to students at other universities as well. Can our Board do this as long as we don't touch the principal?

You can’t change the purpose unilaterally.

Since all states except Pennsylvania have now adopted some form of the Uniform Prudent Management of Institutional Funds Act (See Ready Reference Page: “New UPMIFA Sets Rules for Charitable Funds” ), I will assume that you are in one of those states, but the rule would be essentially the same in Pennsylvania as well.

If the donor is still available and consents in writing to the change, UPMIFA would allow you to give to other schools.  If the donor is unavailable, you will have to give notice to the state Attorney General and obtain court approval to modify the restriction.  The conditions under which the court may agree to a modification, however, are limited to those situations in which a restriction has become “impracticable or wasteful,” or, because of circumstances not anticipated by the donor, modification of a restriction will further the purposes of the fund.  You haven’t suggested anything that would bring you within those standards.  A mere desire to do something beyond the donor’s intent, when it is not impracticable or wasteful to do what the donor asked, is not likely to be sufficient.

The court also has the authority to exercise its cy pres power to change restrictions or the purpose of a fund if the use becomes “unlawful, impracticable, impossible to achieve, or wasteful.” The change must be “consistent with the charitable purpose” expressed in the gift.  Since you have not suggested that it is unlawful, impracticable, impossible or wasteful to make scholarships to the named university, it doesn’t sound as though you could meet this standard either.

Tuesday, July 16, 2013

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