Covid-19: Trustee decision making

In our first piece we looked at considerations that trustees may have about their duties during the Covid-19 pandemic.  In this post, we list some practical guidance about how trustees can hold meetings and make decisions.

It is safe to say that holding face to face trustee meetings at the moment is not possible unless social distancing can be maintained.  However, it is open to trustees to use tools which allow them to hold meetings virtually.

In this way, there is very little difference to holding a face to face meeting, so long as the usual requirements of good governance are met.  This should include record keeping and recording the results of any considerations or resolutions in the usual manner.  However, trustees should always be mindful of any formalities that may be imposed by the trust deed.  This may include how often meetings are held, how trustee decisions should be taken, and how many trustees are required at a meeting (i.e. is a majority decision permitted or is unanimity required?). 

There also may be specific provisions in the deed about how decisions may be taken by a corporate trustee, such as acting by representatives previously authorised, or representatives who may be taking the place of their colleagues due to the current difficulties. 

As with face to face meetings, an agenda should be circulated with clear discussion points and resolutions to be agreed.  It may also be advisable for a test session to be held prior to the meeting to ensure that everyone's home technology is sufficient for the task and that the chosen software can be used by all. Don't forget that in many cases it is possible to hold a meeting by telephone.

If the trustee is a corporate entity, then any decision making will also need to meet the requirements of the Articles of Association of that entity.  If the Articles do not permit remote meetings or written resolutions, then the representatives should consider making amendments to the Articles of Association to increase this flexibility.

In most cases, trustee meetings will not be different to the video calls that we are undertaking with friends, family and colleagues currently.  However, it is important that trustees undertake proper record keeping and  decision making.  This will reduce the risk of any challenge later on. 

Once a decision has been taken, the trustees will need to implement it.  In our final piece in this series, we will look at the requirements for execution of documents by trustees.