Should the Attorney General Have the Sole Power Over Charitable Trusts?

Craig Kaufman  (J.D. Temple University Beasley School of Law, M.B.A. Temple University Fox School of Business & Management) has published his article entitled Sympathy for the Devil’s Advocate: Assisting the Attorney General When Charitable Matters Reach the Courtroom, 40 Real Prop. Prob. & Tr. J. 705 (2006).

Here is an excerpt from the introduction to his article:

Bill Gates, Microsoft’s chairman and a passionate philanthropist, has argued that “you have to work just as hard at giving away your money as you do at making it.” While Mr. Gates may be correct, state attorneys general may face an even more daunting task because, with few exceptions, only the state attorneys general have standing to enforce the terms of a charitable gift. Existing charitable trust principles further complicate the attorney general’s charitable enforcement obligations. These rules deny donors standing to enforce the terms of their gifts yet vest state attorneys general with broad statutory and common law powers to oversee charitable obligations.***

This Article illustrates that while attorney general involvement in charitable trust litigation may be necessary to provide representation of the general public interest, delegating exclusive authority for the public supervision of charities to the attorney general is inappropriate to ensure that the intent of the donor is being followed. Part II of this Article provides historical and substantive background in the area of charitable trust administration and also introduces the inherent problems with exclusive attorney general oversight of charities. Part III argues that the role of the attorney general as parens patriae of charities is so inadequately defined that courts should allow the intervention of parties with a “special interest,” or appoint a trustee ad litem, to supplement the attorney general in its parens patriae role in certain situations.