You can give with certainty

Frederic J. Fransen’s Dec. 8 column asks whether gifts to colleges and universities keep on giving. The answer to his question is a resounding “yes.” Endowments have been around for a long time as a way of addressing worthy philanthropic endeavors. One of the best examples of an endowed private gift was when King Henry VIII gave land to Oxford and Cambridge universities, which they still possess today, more than 500 years later.

While we are not familiar with all the facts in the Princeton University case, we at the University of Maine Foundation firmly believe in earning and maintaining our donors’ trust by carrying out their intentions in perpetuity. Our donors want to know that their endowed gifts will be wisely used and that they will receive a regular accounting of their funds through annual reports and other means.

Fransen is right about one thing – it is important to get gifts right. Donors’ conditions and restrictions are generally embodied in gift agreements or other documents between the donor and the charity. These agreements anticipate that it may someday become impossible or impractical for the charity to carry out the purposes of the fund and set forth a strategy for determining an alternative purpose that best fits the donors’ intent and wishes. In the absence of such language, it is also possible to seek the assistance of the courts to determine an appropriate substitute use for a gift. Using the cy-pr?s doctrine, courts may reform funds to cure these problems. This is important because social, political, economic and other conditions change.

A gift agreement, which is signed by the donors, can include 1) how the donor will be recognized for his/her gift; 2) a clear designation of the person responsible for expending the funds; 3) an explanation of the frequency of reports which will be made to the donor and 4) language to permit the charity’s board or other governing body to assign an alternative or modified use of the funds, if necessary, as conditions dictate in the future. Forever can mean forever, as long as flexibility is built into the gift agreement that will allow the donor’s charitable purpose to be implemented despite changing conditions.

The Uniform Management of Institutional Funds Act imposes on institutions a moral and legal obligation to use gifts only for the purposes for which they were given. The trend toward putting more conditions on gifts, especially those that pressure the institution to adhere to a particular philosophy or point of view, is a slippery slope. Accepting gifts that obviously cannot be administered is not a good practice and honesty with a donor about the long term implications of the gift is always the best course.

At the very least, a university or foundation’s board of directors must prudently manage all gifts and use them in accordance with the donor’s intent. Earning and maintaining a donor’s trust requires that the board of directors or trustees exercise their duty of care and duty of loyalty in good faith.

It is in all charities’ long-term self interests to maintain good donor relations by building a solid foundation of trust and by having language in gift agreements that addresses modifications that may be necessary in the future. Our donors deserve no less.

Amos E. Orcutt is president and chief operating office of the University of Maine Foundation. The foundation is a separate, independent 501(c)(3) nonprofit organization that exists to encourage gifts and bequests to promote academic achievement, foster research, and elevate intellectual pursuits at the University of Maine. Visit www.umainefoundation.org.