There is a telos—a purpose and an objective—that imbues philanthropic gifts to charitable organizations. Sometimes, it’s as simple as general support for the recipient and whatever goals it chooses to pursue. But at other times, a gift’s telos is specific, explicit, and enduring.
In an ideal world, the charity’s work would always match the gift’s telos. But experience proves the two sometimes diverge. This should come as no surprise—the factors that motivate a philanthropist’s generosity are not the same as those that govern the recipient’s activities.
For philanthropists, gifts are quite often very personal expressions of their vision, passions, and beliefs. Whether the gifts come from the store of accumulated value they have created through their own hard work, or legacies they are stewarding for others, they embody a world of meaning. And it is perfectly natural that someone making a gift from such a meaning-infused source would want to ensure the recipient uses it for only the intended purpose.
Recipients of those gifts, on the other hand, face pressures, interests, and needs that may bear little relationship to the factors prompting the donors’ generosity. Overhead costs, for example, are inescapable but unattractive aspects of a charitable organization’s work. Nothing gets done if they’re not paid, but few donors earmark their gifts for this expense category.
Charitable organizations with several projects underway will naturally pursue flexibility in allocating resources between budget categories to keep the enterprise as an entirety on an even keel. And, over time, the natural turnover in an organization’s directors or trustees can lead to shifting priorities that may manifest as anything from missional drift to a complete about-face in the principles and philosophies that had previously informed its work. Each of these factors, and many others, can create a powerful impulse to use already-committed funds without reference to a donor’s individual wishes.
As a hedge against this potentiality, strategically sophisticated philanthropists impose restrictions on their gifts to ensure they aren’t eventually used to support objectives contrary to the gifts’ telos. These restrictions aren’t meant to be aspirational—their value depends entirely on their legal enforceability. But what happens, as a practical matter, if the charitable organization disregards the restrictions? The gift instrument might perfectly express the donor’s intended purpose, but that will be cold comfort if there is no effective avenue for enforcing the restriction when the recipient organization goes astray.
Enforcement of donor intent is not a new concern, but it lacks a nationwide consensus on how to address it. Indeed, the current state of the law regarding the enforcement of donor intent isn’t wholly fit for the purpose. It’s frequently messy, sometimes incoherent, and often unpredictable. Mechanisms for protecting a donor’s intent may be found scattered all across a state’s statutes and common law doctrines. The Uniform Trust Code (UTC) and the Uniform Prudent Management of Institutional Funds Act (UPMIFA), for example, speak to some aspects of how restrictions on charitable gifts should be handled.
Common law contract and tort concepts, as well as equitable devices like trusts, whether express, implied, or constructive, have all been asserted as legal theories to protect a donor’s intent. Through one or more of these vehicles, all states require charitable organizations to honor restrictions on charitable gifts in at least some circumstances. But the legal theories have grown in an ad hoc and haphazard manner, which leaves a donor’s intent with less than comprehensive and predictable protection.
Making sense of the substantive law, however, is not the only challenge. Just because a state’s law nominally protects a donor’s intent doesn’t mean it will actually be enforced. The default rule in many jurisdictions still provides that only the attorney general, not the donor, has the authority to file enforcement actions. This can lead to significant under-enforcement of gift restrictions if the attorney general’s office is focused on issues with more practical or political salience. Or differs with the donor with respect to a restriction’s meaning or importance. Or lacks expertise. Or capacity. And so on.
There is a better way. It is possible to create a legal framework that effectively and efficiently enforces the intended use of restricted charitable gifts. The Safeguarding Endowment Gifts Act (SEGA)1Safeguarding Endowment Gifts Act (Philanthropy Roundtable 2025) (hereinafter “SEGA”). creates such an environment, and it does so without disturbing a state’s existing statutory enactments (such as local implementations of the UPMIFA or UTC) or deforming traditional common law principles.
And because it specifically empowers donors or their representatives to bring enforcement actions, challenges to unauthorized uses of restricted gifts won’t depend on capturing the interest of a state’s attorney general. So, adopting the SEGA transforms a gift’s telos—the donor’s intent—from a notional desire into real-life protection. This is the way, the tao of protecting donor intent.
The SEGA is a comprehensive but straightforward response to lessons learned from historical failures to protect donor intent. Attempts to stretch existing common law principles to cover restricted charitable gifts have only occasionally succeeded, and in the process they have illustrated why this approach is particularly inapt for both structural and substantive reasons.
And while uniform laws like UPMIFA and the UTC incorporate nominal protection, their limited applications and (in most adaptations of the UPMIFA) a lack of robust enforcement mechanism means that, as a practical matter, their protection is not always available.
This article explores how donor intent has been addressed—and should be addressed—in three sections. The first surveys the litigative and legislative landscape over the last 10 years for the purpose of illustrating the variety of ways in which courts and legislatures have been treating the subject … and also to demonstrate that many states still lack a comprehensive toolkit for addressing it.
The second section explains why current common law and equitable theories are unequal to the task of comprehensively and reliably protecting donor intent. The third section explores how the SEGA replaces badly battered common law and equitable theories with a clear and jurisprudentially defensible requirement that charities comply with restrictions on charitable gifts, and explains how it fills in the gaps left by existing adaptations of uniform model legislation.