Best Practice in Gift Agreements

Transcription

1 Best Practice in Gift Agreements Date: September 5, 2010 Updated August 6, 2016 Prepared By: Ann Huse Categry: Recrds Management Cmments T: Cmment Perid: Octber 1 December 31, 2016 Descriptin f Practice: Emplying the use f apprpriate gift agreements is the first step in gd dnr stewardship and enables clear cmmunicatins and recrd keeping fr bth the dnr and the institutin regarding purpse, payment schedule, recgnitin, investment plicies and future dispsitin f cmmitments. Setting naming threshld amunts fr buildings and endwments ensures cnsistent treatment f cmmitments. Prspective Users f Practice: Develpment/gift fficers/planned giving fficers--clsing cmmitments, cmmunicating with dnrs Financial prcessrs/managers--recrding infrmatin n the institutin's financial bks/financial system System staff/it supervisrs--prducing pledge reminders Dnr relatins fficers/researchers prducing stewardship reprts and dnr prfiles Gift and recrds directrs--recrding accurate gift infrmatin and payment schedules in the develpment database Page 1 f 7

2 Senir advancement services prfessinals--managing sme f the staff wh are invlved in the prcess f creating and generating gift agreements General cunsel--ensuring agreements are legal and in line with institutinal plicies Advancement/develpment ffice management--prjecting gift revenue Issues Addressed: This practice illustrates hw t draft gift agreements; set plicies and prcedures gverning the creatin f gift agreements; identify the types f assets funding gifts; decide the purpses f gifts (endwed chair, endwed schlarship, naming buildings, bequests, unrestricted, etc.); knw when yu may nt need a gift agreement; and determine the enfrceability f an agreement. Desired Outcmes: Imprve dnr relatins by utlining clear expectatins fr gifts thrugh a set f plicies and prcedures that have been apprved by the institutin and/r its gverning bard Insure the institutin can hnr the dnr's wishes when a gift is made and that the gift is made at an apprpriate level, which shuld be determined by institutinal plicy Avid legal hassles by utlining the expectatins f each party--the dnr and the institutin--and dcumenting thse expectatins upn review by legal cunsel Streamline prcesses that saves time fr dnrs and the institutin by having established plicies in place, staff identified wh have a key rle in the prcess, and legal cunsel invlvement as needed Prvide clear instructins fr spending and the stewardship f the cmmitment Prcess: The prcess shuld start with: Written plicies establishing naming threshld amunts fr different types f cmmitments and fr the required use, apprval, and ruting and recrding f gift agreements Gift agreement templates that can be mdified t include specific infrmatin Gift agreement templates culd be prepared fr different purpses such as endwments, current spending, and deferred gifts. These templates shuld be Page 2 f 7

3 apprved by general cunsel staff (r utside attrneys), and/r finance fficers f the institutin--usually the cntrller and the treasurer A determinatin f persn(s) wh shuld be apprving draft gift agreements based n each template befre they are presented t the dnr If the draft gift agreement departs frm the standard language in the template, a list f exceptins triggers and additinal cllateral review required Training fr develpment fficers and their supprt staff, advancement services staff, and dnr relatins/stewardship staff n the plicies and the prcess Institutins are then ready fr dnrs t make a cmmitment. This may happen when: Dnrs decide unslicited t make a cmmitment, r Develpment fficers wh have been preparing fr the dnr cmmitment are ready t prvide the dnr a written prpsal utlining the utcmes f funding ne r mre things at the Institutin. The dnrs may wrk with any f a number f the institutin s representatives, including majr r planned gift fficers; financial fficers f the institutin ; and/r, in sme cases, the planned giving staff where establishing a gift in perpetuity. The dnrs and institutin's representatives must discuss and agree upn: The amunt f gift needed t establish a type f gift (schlarship endwments, chairs, internal r external building namings, etc.); The schedule n which the cmmitment will be paid; The type f asset funding the gift; The purpse r use f the funds; Any namings that may be included; and The utcmes that dnrs can expect. Then, a specific agreement draft may be prepared frm the apprpriate gift agreement template, after which the fllwing shuld be cnsidered: A review f each specific agreement fr: Type f dnr (individual, individual and spuse fundatin, crpratin, etc.) Page 3 f 7

4 Amunt f cmmitment (des it meet established threshlds?) Type f asset funding the agreement (cash, stck, trust, etc.) Nte: assets which may nt fund an individual's cmmitment (e.g., Dnr-Advised Funds, private r family fundatins) require a different dnr r a special agreement. Naming specifics Payment infrmatin (duratin may be determined in plicy such as accepting nly 5 year pledges) Stewardship expectatins The realizatin that n tw agreements are likely t be identical and agreements may need additinal pre-apprved paragraphs t cver such as: Matching/challenges Dnr-advised funds Remving names if cmmitment is nt fulfilled Schlarship Preferences Dnr buying back stck Estate trustee changes Term endwments Space changes Waiving spending plicy Multi-dnrs t ne endwment (grass rts) Spnsrships Athletic benefits After preparatin f the specific agreement, the agreement shuld be ruted t all necessary institutinal apprvers. Depending n the agreement, the apprvers may include: Deans r unit heads Financial aid ffice Page 4 f 7

5 Legal cunsel (especially where nn-standard language is requested by dnrs, their financial advisers, r by fundraisers) Dnr relatins/stewardship Prvst r vice president fr academic affairs Finance and treasurer External relatins Spnsred research VP develpment President All apprvers shuld be given the draft at nce, rather than sequentially, in rder t keep the apprval prcess as efficient as pssible. Tracking f the gift agreement apprval prcess shuld be handled centrally within advancement services. Once all institutinal apprvals have been received, the agreement is ready t be presented t the dnr. If the dnr agrees t make the cmmitment, the fllwing shuld be cnsidered: If the dnr changes the agreement, the apprvals shuld again be cmpleted. The designated persn at the institutin shuld be the final signature. Cpies r riginals (accrding t plicy) f agreements shuld g t the dnr and advancement services gift prcessing staff. The spending authrity shuld be infrmed. The dnr relatins staff shuld be infrmed fr acknwledge and stewardship purpses. Other cnsideratins fr gift agreements: If a dnr wishes t change an agreement the use f a gift amendment is advised. A template shuld be created fr this purpse. If the remainder f the pledge is t be paid thrugh the dnrs' estate if/when a schedule can't be met during the dnrs lifetimes, the dnrs must be infrmed f this plicy and it shuld be stated in the agreement. If the cmmitment is being made by a crpratin r fundatin, the agreement must state that the persn(s) signing the agreement have the legal right t sign fr the entity. Page 5 f 7

6 If the cmmitment is being funded by a family r persnal fundatins, the dnr in the agreement shuld be the fundatin. At educatinal institutins, if the gift is determined t be a spnsred gift r grant (the decisin f which is ften made by a senir level executive in the Finance Office), then the institutin's Office f Spnsred Prgrams r Spnsred Gifts handles the agreement. These gifts may r may nt be cunted by Advancement r accrding t the CASE Reprting Standards and Management Guidelines. (See the Best Practice entitled Gift Administratin - Gifts versus Grants versus Cntracts ) Enfrcing Gift Agreements is rarely dne by an institutin and if dne, it is usually after a dnr dies. The cmmitment must be fr a specific purpse and there must be cnsideratin r detrimental reliance. Cnsideratin and detrimental reliance are bth defined in CASE Reprting Standards and Management Guidelines and can be generally interpreted as determining whether r nt a dnr is receiving anything in return fr his r her gift. Was there a quid pr qu fr the dnr? Will the institutin take legal actin against a dnr after a building was built, fr example, and the pledge was never paid by the dnr? When and hw an institutin will enfrce an agreement varies. An institutin's legal cunsel will need t weigh in n any discussins invlving thse dnrs wh want cnsideratin (smething in return) fr the gift. Often that can easily be guaranteed, but nt always. Smetimes a cmmitment may require a business decisin instead f a legal decisin. An example is requiring that the institutin must match the cmmitment. It shuld be determined wh can make that decisin. Cmmitments funded by a gift-in-kind may require specific language and fllw plicy. (See the Best Practice entitled Gifts in Kind ) Cmmitments funded by a dnr-advised fund may require specific language and fllw plicy. (See the Best Practice entitled Dnr Advised Funds ) If the cmmitment is fr endwment, make the dnr understand the endwment investment and spending plicy. Sme institutins use language t remve an external name if, as a result f actin made by the dnr, the naming culd cause damage t the institutin s reputatin. Fr naming f physical space, include language f remval f the name if the cmmitment is nt fulfilled. Als include language if there is a space change t give the dnr anther naming accrding t his/her level f giving. Determine if the naming is fr a perid f time r in perpetuity. The dnr shuld be encuraged t seek review f the agreement by the dnr s advisrs. Page 6 f 7

7 Spnsrships f events r prgrams shuld clearly list the benefits received and the fair market value f each if the benefit is determined t be nn-deductible. (See the Best Practice entitled Quid Pr Qu Cntributins ) Accrding t IRS plicy 526, dnrs cannt be invlved in chsing student recipients f schlarships. Agreements shuld clearly state that the institutin chses the recipient. AASP Recmmendatin: Executing a gift agreement is best practice fr all cmmitments, but is especially imprtant fr any cmmitment that is multi-year, fr a specific purpse, names a fund, names a physical space, creates an endwment, r includes bligatins n the part f the institutin r the dnrs. It is als best practice when wrking with an institutin's internal and external auditrs requesting dcumentatin. Sample Plicies & Prcedures: University f Miami: Plicies fr Endwment Gifts (F70) and naming f Schls, Clleges, Hspitals, Centers, Institutes, and Departments and fr Naming and Supprt f University Buildings and Physical Spaces (F140). Cpies f plicies will be sent n request t digna@miami.edu Sample gift agreements, amendments, and special paragraphs at: Page 7 f 7