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Show Us Your ‘Estate’ Papers

(An excerpt from the paper, A Radical and Unlawful Power Grab over Private Charity and Religion)

Most of the published comments about POCAA so far have centered on Section 4, which creates yet another registration requirement for charities.  The new, additional requirement to register under POCAA applies when charitable assets exceed $50,000.  The Act also includes provisions for filing annual reports and notices of “reportable events,” and filing other notices that previously did not need to be filed.

Section 4(c) provides certain exemptions to registration.  The first exemption is for any “government or government subdivision, agency, or instrumentality.”  Given the scandals involving government fraud, waste and abuse, one can argue that the exemption for government is unconscionable.  This is Big Brother exempting Big Brother.

Section 4(c) makes religious entities an optional exemption, and provides four “Alternatives” for these optional religious exemptions.  In other words, the drafting committee saw fit to definitely exempt government agencies, but made churches and other religious entities merely an optional exemption for states that would consider adopting the Act.

Section 6 requires the personal representatives of probated estates to file with charity regulators a copy of Wills making charitable bequests and the inventory list of the estates.¹ In the states that do not exempt religious organizations, this forced disclosure of Wills would apply to religious bequests.  The Act does not prohibit charity regulators from posting this information online.²

The Act’s comments reference that some states require reporting of conservation easements granted under Wills.  POCAA’s requirement to report bequests of cash or other property, however, is a radical intrusion on privacy and the right to bequeath private assets to private institutions.

These new powers become more dangerous by virtue of the Act’s using what at first blush may appear to be a subtle term describing generally the power of charity regulators.  Upon close inspection, the term is actually a radical one.

The Act authorizes charity regulators to act “in the public interest,” as in “to protect the public interest in charitable assets.”  The committee debated that phrase versus “in the interest of the public,” and concluded there was no difference between the two.

Of course there’s a difference.

The term “in the public interest” is a subjective standard for potentially broad and varying interpretations of subject matter.  The term is open to widely varying ideological interpretations depending on who is charged with enforcement.

The term “in the interest of” or “on behalf of” “the public” is an objective matter of standing.  “Standing” is a term of jurisdiction to bring a cause of action under an objective and legally enforceable law.  It is a doctrine used by the courts to ensure that only those with an interest in litigation may actually appear before the courts.

The Virginia case the committee cites in support of its expansion of authority, Virginia v. The JOCO Foundation, 558 S.E.2d 280 (Va 2002), was about whether the attorney general had standing to challenge the use of charitable assets inconsistent with a foundation’s governing documents, and whether the court had jurisdiction to hear the challenge.  That decision used the phrase, “authority to act on behalf of the public with respect to [charitable] assets” with regard to the attorney general.  The case does not support the notion that the attorney general has a subjective power to determine a “public interest” in private charitable assets.

This one twist of words employed under the Act expands the power of charity regulators, as opposed to clarifying the unique role of attorneys general relative to protecting charitable assets from misuse.

The phrase “public interest” in charitable assets is a corruption of the common law hoisted on the public by charity regulators.  For some years, charity regulators have been pushing that corrupted twist of words in an effort to expand their authority over private assets.

POCAA itself is therefore little more than special interest legislation sought by and for charity regulators.  It is not based in the common law or American law.  The Uniform Law Commission has given us a model law that is inconsistent with the purposes of clarification, and instead is an unprecedented intrusion into private property and other rights.  One can even argue that POCAA is based more in an ideology than sound law.

*****

¹ Section 6(d) reads:  “If a decedent‘s estate opened by a court in this state involves, or may involve, the distribution of property to a person holding charitable assets, unless the distribution is a nonresiduary devise with a value of less than $[50,000] to a named person, the [personal representative] shall deliver to the [Attorney General] not later than [90] days after the date the [personal representative] is appointed:

(1) a copy of the will;
(2) a copy of the [application] [petition] for probate; and
(3) a copy of the inventory or, if none is filed with the court, a statement of the value of the estate.”

 

² See, “Government Privacy Invasions” in The National Law Journal, September 2010, explaining that the North Carolina Secretary of State, the charity regulator of that state, has taken the position that she may post online material and information filed with her office even without express authorization to post that information online.

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202472477551&Government_privacy_invasions&slreturn=1 (password protected).

 

 

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