Chapter 18 - § 18.6 • MISCELLANEOUS PROVISIONS AND ISSUES

• Jurisdiction: Colorado

§ 18.6 • MISCELLANEOUS PROVISIONS AND ISSUES

§ 18.6.1—Retroactive Application

UPMIFA applies not only to institutional funds established after its enactment, but also to funds that existed before its enactment. C.R.S. § 15-1-1108. This can raise some concerns regarding donor intent, particularly where the rule of construction regarding endowment expenditures is concerned. To recap, this rule of construction applies to a gift where a donor has used words such as "endowment" or "income" without providing more guidance. UPMIFA's rule of construction will classify such a gift as an endowment of perpetual duration that is subject to the default spending rule.

It is possible that the retroactive application of UPMIFA could alter the intent of a donor who established an endowment with the intent that it would be subject to the spending rule of UMIFA (prudent amount of net appreciation). However, it is fairly unlikely that many donors were familiar with the particular language or standards under UMIFA; instead, donors who established an endowment under that law likely only had the intention that amounts would be spent that would allow the fund to continue to exist while also providing for the charitable purposes of the institution. The application of UPMIFA to an existing fund in such circumstances would not thwart donor intent, and in fact may be more suited to carrying out this intent due to UPMIFA's tighter focus on the endowment itself rather than the institution as a whole. Gary, 41 Ga. L. Rev. at 1321-22; C.R.S. § 15-1-1104 comment to subsection (a). Several courts, including the Colorado Supreme Court, have examined the retroactive application of a constructional statute (though not UPMIFA) and upheld such application. See Gary, 41 Ga. L. Rev. at 1322.

If UPMIFA did not apply retroactively, institutions would likely have to maintain two different sets of endowments. This would result in inefficiency and greater administrative costs, and could reduce the amount of money that goes to further the institution's charitable purposes. Gary, 41 Ga. L. Rev. at 1323.

§ 18.6.2—Donor Standing

When a donor makes a restricted gift to an institution, the donor is making it with an understanding that the gift will be used in accordance with the restrictions in the gift instrument. Yet if a donor (or a donor's heir) thinks that the institution is not abiding by those terms, he or she often does not have a mechanism to challenge the institution. Traditionally, unless a donor...