PGTS Standard
17. Written requests are obtained and appropriately verified by a method approved in writing by legal counsel who is authorized to practice in the applicable jurisdiction for the transfer or return of any original legal documents. [PGP, PGTS]
Purpose
This standard on Returning Original Documents is a new standard yet it reflects what most offices have been doing as they process requests for the transfer or return of original legal documents. This standard includes all signed legal documents held by accredited organizations, such as wills, trusts, and powers of attorney, and are kept in a fireproof vault or file cabinet.
The new standard intends to answer the frequent question, “what constitutes a valid written request?” The standard is clear that the request must be written. Historically, holographic, or written entirely by hand, has been defined as written. However, in the email and electronic communication era, correspondence is rarely written entirely by hand and is often signed by digital means. This creates the question, “what counts as written?”
The standard allows each organization to work with its legal counsel to develop a procedure verifying the request is valid and complying with local law in the jurisdiction where the organization does business. This allows for the possibility of using electronic forms of communication such as email.
Fiduciary or not
Even though storing documents for donors may not necessarily commit the organization to fiduciary responsibilities, there is a responsibility to keep the documents safe, secure, and confidential. Safe from destruction by fire or water, secure from theft, and confidential from unauthorized access to personally identifiable information. When a request is received for the transfer or return of original legal documents, due diligence is expected of the custodial (storing) organization to take the proper steps to assure the request is coming from an authorized person, and that unauthorized persons do not obtain access to the documents. Sometimes there are family disagreements that could motivate certain unauthorized individuals to seek access to another person’s documents. At times, well-meaning individuals may think they should have access to the documents. Always read the document to determine who the donor has designated to have access to their documents.
How to relate
New Standard #17 opens the possible use of email as a form of written request for the transfer or return of original legal documents. This standard also requires that a “written request” be appropriately verified to ensure it is coming from an authorized person. This verification could be accomplished by a personal visit, telephone conversation, or some other method approved by legal counsel. The key reason for verification is to assure your office is following the intent of the donor.
At times, it may be difficult to determine the intent of the donor. If there is any doubt as to whether the request is coming from the donor, a physical visit may be required to determine the facts. Following your attorney’s opinion will keep your organization out of legal trouble as well as meet the requirements of Standard #17 on your trust review.
Conclusion
Your attorney’s legal opinion must guide how your organization verifies the written request for returning original documents to donors. Once that opinion is completed, all persons in your Planned Giving & Trust Services office must be aware of the guidance and procedures established in the office to implement Standard #17.