In recent years, the philanthropic community has confronted several significant developments involving the issue of donor intent that could significantly affect charitable giving in the United States. Given the challenges confronting donors who are concerned that their charitable intent will not be carried out after they die, there are several strategies these donors may use to protect their goals.

Americans historically have been an extremely generous peAmericans historically have been an extremely generous people. In 2006 alone, Americans contributed $295 billion, continuing an upward trend in charitable giving that has occurred over the last several years. Undoubtedly, most of these contributions were unrestricted gifts of cash and marketable securities, which the recipients were permitted to use for whatever charitable purposes they deemed appropriate. However, some donors, particularly those who give large gifts, likely imposed restrictions on their use. This is not a new development, since philanthropists have always, to a degree, sought to control, or at least influence, the manner in which their charitable gifts are used. This is particularly true for gifts funded after the donor dies, when he will not be able to personally monitor their use by the charity. On the other hand, charities have always preferred unrestricted gifts free from the influence of the donor's "dead hand," as opposed to those whose use is mandated by the giver. The tension can lead to a mismatch between the goals of the donor and the activities of the charity or private foundation.

The Problem Of Mission Drift

Whenever a donor contributes to a charity for a specific purpose, there is always a possibility that the charity will fail to satisfy the donor's intentions. Similarly, whenever a donor creates and funds a private foundation, there is a possibility (particularly after the donor's death) that the organization's goals and mission will gradually morph into something very different from the donor's original intent.

Such instances of "mission drift" could occur for numerous reasons. For example, the donor may not have clearly articulated her charitable intentions, or she may have imposed overly restrictive qualifications on the gift that are either impractical or impossible for the charity or private foundation to fulfill. In addition, the donor's long-term charitable goals may no longer be relevant as times change. For example, a charitable fund created in the 19th century exclusively for the treatment of tuberculosis patients in the United States may be irrelevant today-and accordingly problematic to administer. Otherwise, mission drift could occur because of a lack of attentiveness to the donor's original intentions by the charity or private foundation. In rare situations, the governing body of the receiver may believe that the donor's intentions are unknowable or do not govern her gift. In even rarer situations, the boards may make the conscious business decision to circumvent those intentions. In any event, many donors are alarmed by the possibility that their charitable plans will not be fulfilled.

One commonly cited historical example of mission drift as perceived by a donor's heirs involved the Ford Foundation, founded by Henry Ford's son Edsel. Several years after Edsel's death, his son Henry Ford II resigned from the board of directors as an act of protest against the foundation's activities, arguing that they were anticapitalist and therefore anathema to the free-market values of his father and grandfather. Though Ford did not pursue litigation in an attempt to reverse the mission drift, the story is useful in articulating the concerns that many donors feel when making large charitable gifts or establishing private foundations.

Another fight involved the perceived mission drift of the Barnes Foundation of Merion, Pa., which planned to relocate a multibillion art collection to Philadelphia. The foundation's founder, Albert C. Barnes, specifically mandated that his collection remain on display in his former Merion residence in perpetuity, specifying the exact manner in which the artwork was to be displayed for public viewing. After a multiyear court battle between the foundation board, members of the community and other charitable organizations, the foundation was indeed permitted to move the art to the new Philadelphia facility. While the general purposes of the foundation-to display Barnes' outstanding collection of artwork-remains the same, the court significantly changed several key restrictions by allowing the foundation to move. This case is noteworthy to many in the philanthropic community as a clear example of a court's inherent authority to break a donor's plan, even one as meticulously laid out as Barnes'.

Another ongoing controversy involves Princeton University and the Robertson family of the A&P grocery store fortune. These parties presently are involved in litigation over the proper use and administration of a charitable fund established by heir to the fortune Marie Robertson in 1961. The Robertson family alleges that Princeton has not used or administered the gift in accordance with her wishes and has mismanaged her legacy. Princeton contends just the opposite and has argued that the Robertson heirs are effectively attempting to rewrite her plan. Meanwhile, the philanthropic community is anxiously awaiting the New Jersey court's decision in the case, which will no doubt affect how restricted funds and indeed charitable organizations are governed in the future when the donor articulates specific goals.

These two cases are major and newsworthy, but are not isolated. In recent years, there have been several other significant disputes between donors, their families and the charitable organizations that they wish to support regarding the ongoing use of donated funds. Obviously, donors who wish to support the particular activities of a charity are interested in these developments because they want to make sure that their gifts will be used for the purposes intended. While nothing can prevent a court from breaking a trust or any other legal document that restricts the use of a charitable gift, donors can nonetheless plan accordingly to avoid mission drift.

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