Page 8 - Presbyterian Connection
P. 8

8 SUMMER 2022
 Continued from page 7
For the purposes of this article, the more common “trust deed” is used.
Does a Session need presbytery permission to prepare a trust deed?
No. Since the polity of our denom- ination requires all congregations to have a trust deed as part of the good order and effectiveness of dealing with certain legal matters, a congregation can prepare it at any time.
Who approves each
trust deed?
The Session should have their trust deed reviewed by legal coun- sel to ensure it complies with provincial law. It is then approved by the congregation and the pres- bytery. This gives the presbytery an opportunity to confirm that it is in harmony with the law and general procedures of the church as expressed in Book of Forms, section 173. When a congrega- tion includes the statement that appoints the presbytery moderator and clerk as temporary trustees if a congregation finds itself with- out its own trustees, the presby- tery would need to be aware of this possibility. (See Trust Deed Template, section 4E.) There is a place for the moderator and clerk of presbytery to sign the trust deed once the presbytery has approved it. These signatures indicate the trust deed is complete.
173. The congregation may adopt such further rules and regulations for the administra- tion of the temporal affairs of the congregation as may be deemed advisable, but such rules and regulations shall be of no effect until submitted to, and approved by, the presby- tery of the bounds as in harmo- ny with the general procedure of the church.
What is the difference between a trustee and an agent for the congregation? (See Trust Deed Template, section 1B.)
Both terms are defined in the trust deed glossary. Acting as an agent of the congregation means ful- filling tasks as instructed by the congregation. The term, “trus- tee,” implies an added level of responsibility. Imagine that a con- gregation decides to sell a parcel of land and instructs the trustees to look after the details within specified parameters. Before the sale goes through, the trustees discover that an oil tank lies bur-
ied in the middle of the property. As agents, they would fulfill the request of the congregation and sign all the necessary documents to complete the sale. As trustees, they would assume the added re- sponsibility of bringing the exist- ence of the tank to the attention of the congregation so that it can be dealt with in a legal and environ- mentally responsible way before the land is sold.
How many trustees
should a congregation elect? (See Trust Deed Template, section 3C)
A minimum of three trustees is recommended, but it is not a legal requirement. Having three trustees allows for one to be hang-gliding in Switzerland while the others fulfill trustee responsibilities at the church that arise during their ab- sence. Having multiple trustees provides a greater diversity of ex- perience, expertise and wisdom. Nevertheless, it is permissible for a congregation to elect the number of trustees deemed necessary to serve the congregation.
Do the trustees own
the church property?
(See Trust Deed
Template, section 5C) Trustees do not own church prop- erty. They hold it in trust for the purposes of the congregation while it remains a congregation of The Presbyterian Church in Canada. If the congregation is dissolved by the presbytery, then the property and all assets are vested with the Trustee Board of The Presbyterian Church in Canada for the benefit of the de- nomination.
What does “without limit- ing restrictions” mean? (See Trust Deed Template, section 5J and glossary) Trustees normally have no au- thority to decide on the receipt or distribution of bequests or lega- cies beyond instructions issued by the congregation. “Without limiting restrictions” means con- gregations may assign trustees additional authority beyond the usual restrictions, such as by giving them permission to make certain decisions regarding be- quests.
If the executor for the estate of the late M.T. Banks informed a Session $50,000 had been left to the congregation, it would be the prerogative of the congrega- tion, under the leadership of the Session, to decide whether to ac- cept the bequest. If the congrega- tion agreed to accept it, and if the trustees are asked to look after it, the congregation would give the trustees instructions regard- ing how the funds should be held and used, usually with direction to report to the congregation on a regular basis.
It is not compulsory for trus- tees to handle this type of fund. A congregation may assign this re- sponsibility to the Session, board of managers or a committee ap- pointed for this task.
What does it mean
that trustees are not restricted to making investments “authorized by law”? (See Trust Deed Template, section 5L) Some corporations are restricted by law regarding the categories of investment they may use.
Congregations are not restricted in this way. Trustees, neverthe- less, are expected to exercise good judgement on behalf of the congregation.
Can trustees be held
liable for their actions? (See Trust Deed
Template, section 7) Congregations are to indemnify (protect against damage, loss or injury) trustees. That means con- gregations share responsibility for the activity the trustees carry out on behalf of the congregation. Nevertheless, it is recommended that congregations have directors and officers liability insurance as part its overall insurance cov- erage. If a trustee wilfully acts outside the direction of the con- gregation or outside the law, that trustee could be subject to disci- pline or face liability.
What if a trustee disagrees with the instructions of the congregation?
If a trustee is directed to take an action they feel is not in the best interests of the congrega- tion, the trustee may ask for the direction to be reviewed. If, after the review, the congregation still wants the trustee to carry out the request, the trustee may choose to comply with the direction or to offer their resignation from the office.
What happens if the title to the church property is in the names of trustees who are no longer trustees? Sometimes a church property ti- tle deed (not to be confused with a trust deed) is in the names of
the original trustees who may no longer be trustees or even alive. This should not pose a le- gal problem. With an extract of a congregational meeting certifying the names of the current trustees, any land transaction can still be facilitated.
Never theless, it is recom- mended that congregations re- view their proper ty title deed to ensure it is current. It is further recommended that it be regis- tered in the name of “Trustees for the congregation of [Name of Congregation]” to avoid hav- ing to change names on the title deed whenever a new trustee is elected. There may be some le- gal fees associated with this.
What does Declaratory Act: A&P 1991 (pp. 250, 37) say?
A declaratory act is a state- ment or “declaration” that a Gen- eral Assembly can adopt to affirm what it understands the law of the church to be, regarding any matter. In case you are wonder- ing, the declaratory act noted at the end of Book of Forms, sec- tion 149, makes the following five points, all of which are covered by the trust deed.
• If a trustee shall cease to be a member of the congrega- tion, they cease automati- cally to be a trustee of that congregation.
• Trustees have only the power delegated to them by duly called congregational meet- ings and such power can be amended or withdrawn by another duly called meeting of the congregation. Trus- tees are accountable to the congregation for the full and faithful performance of tasks delegated to them.
• Trustees have no power to decide on the receipt or disposition of bequests and legacies. This prerogative re- mains with duly called con- gregational meetings.
• Trustees cannot alter or go beyond the instructions of the congregation.
• A trustee who cannot, for the sake of conscience or any other reason, carry out the wishes of the congregations must necessarily resign. A trustee is no more and no less than a pen in the hand of the congregation.
For more information about Trust Deeds, contact the General Assembly Office at 1-800-619-7301.

   6   7   8   9   10