Edited by Matthew Harding
Chapter 8: Donor intention and dialectic legal policy frames
This chapter considers one key question: is the guiding principle for the legal effectuation of charitable trusts respect for the intention of charitable donors, or is it to be found in considerations of public policy? The chapter argues that in at least one respect it is the latter, even though it is often assumed by courts and commentators alike to be the former. It shows that, while an interest in donor intention is never absent when courts are applying the cy-pres doctrine by which charitable purposes may be varied, that intention is usually subordinated to public policy considerations, whether these be grounded in harm minimization or simply efficient deployment of charitable assets. The chapter raises some profound questions about where control and oversight of the not-for-profit sector ultimately lies: is it with citizens acting individually or in the associational sphere, or is it with the state?
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