Bill Text: IL HB0811 | 2009-2010 | 96th General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Creates the Uniform Prudent Management of Institutional Funds Act, proposed by the National Conference of Commissioners on Uniform State Laws. Provides for: standards of conduct in managing and investing an institutional fund held by a charitable institution for charitable purposes; appropriations by an institution for expenditure or accumulation of endowment funds; the delegation of management and investment functions; the release or modification of restrictions on the management, investment, or purpose of an institutional fund; compliance; application; construction; and other matters. Repeals the Uniform Management of Institutional Funds Act. Amends the Religious Corporation Act by making conforming changes.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2009-06-30 - Public Act . . . . . . . . . 96-0029 [HB0811 Detail]

Download: Illinois-2009-HB0811-Introduced.html

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96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 HB0811 Introduced 2/9/2009, by Rep. Lou Lang SYNOPSIS AS INTRODUCED:
New Act
760 ILCS 50/Act rep.
805 ILCS 110/41 from Ch. 32, par. 170
805 ILCS 110/43 from Ch. 32, par. 172
805 ILCS 110/46e from Ch. 32, par. 180
805 ILCS 110/46f from Ch. 32, par. 181
805 ILCS 110/46g from Ch. 32, par. 182
805 ILCS 110/46j from Ch. 32, par. 185
Creates the Uniform Prudent Management of Institutional Funds Act, proposed by the National Conference of Commissioners on Uniform State Laws. Provides for: standards of conduct in managing and investing an institutional fund held by a charitable institution for charitable purposes; appropriations by an institution for expenditure or accumulation of endowment funds; the delegation of management and investment functions; the release or modification of restrictions on the management, investment, or purpose of an institutional fund; compliance; application; construction; and other matters. Repeals the Uniform Management of Institutional Funds Act. Amends the Religious Corporation Act by making conforming changes.
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A BILL FOR
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AN ACT concerning institutional funds.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Uniform Prudent Management of Institutional Funds Act.
Section 2. Definitions. In this Act:
(1) "Charitable purpose" means the relief of poverty, the
advancement of education or religion, the promotion of health,
the promotion of a governmental purpose, or any other purpose
the achievement of which is beneficial to the community.
(2) "Endowment fund" means an institutional fund or part
thereof that, under the terms of a gift instrument, is not
wholly expendable by the institution on a current basis. The
term does not include assets that an institution designates as
an endowment fund for its own use.
(3) "Gift instrument" means a record or records, including
an institutional solicitation, under which property is granted
to, transferred to, or held by an institution as an
institutional fund.
(4) "Institution" means:
(A) a person, other than an individual, organized and
operated exclusively for charitable purposes;
(B) a government or governmental subdivision, agency,

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or instrumentality, to the extent that it holds funds
exclusively for a charitable purpose; or
(C) a trust that had both charitable and noncharitable
interests, after all noncharitable interests have
terminated.
(5) "Institutional fund" means a fund held by an
institution exclusively for charitable purposes. The term does
not include:
(A) program-related assets;
(B) a fund held for an institution by a trustee that is
not an institution; or
(C) a fund in which a beneficiary that is not an
institution has an interest, other than an interest that
could arise upon violation or failure of the purposes of
the fund.
(6) "Person" means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or any
other legal or commercial entity.
(7) "Program-related asset" means an asset held by an
institution primarily to accomplish a charitable purpose of the
institution and not primarily for investment.
(8) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.

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Section 3. Standard of conduct in managing and investing
institutional fund.
(a) Subject to the intent of a donor expressed in a gift
instrument, an institution, in managing and investing an
institutional fund, shall consider the charitable purposes of
the institution and the purposes of the institutional fund.
(b) In addition to complying with the duty of loyalty
imposed by law other than this Act, each person responsible for
managing and investing an institutional fund shall manage and
invest the fund in good faith and with the care an ordinarily
prudent person in a like position would exercise under similar
circumstances.
(c) In managing and investing an institutional fund, an
institution:
(1) may incur only costs that are appropriate and
reasonable in relation to the assets, the purposes of the
institution, and the skills available to the institution;
and
(2) shall make a reasonable effort to verify facts
relevant to the management and investment of the fund.
(d) An institution may pool two or more institutional funds
for purposes of management and investment.
(e) Except as otherwise provided by a gift instrument, the
following rules apply:
(1) In managing and investing an institutional fund,

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the following factors, if relevant, must be considered:
(A) general economic conditions;
(B) the possible effect of inflation or deflation;
(C) the expected tax consequences, if any, of
investment decisions or strategies;
(D) the role that each investment or course of
action plays within the overall investment portfolio
of the fund;
(E) the expected total return from income and the
appreciation of investments;
(F) other resources of the institution;
(G) the needs of the institution and the fund to
make distributions and to preserve capital; and
(H) an asset's special relationship or special
value, if any, to the charitable purposes of the
institution.
(2) Management and investment decisions about an
individual asset must be made not in isolation but rather
in the context of the institutional fund's portfolio of
investments as a whole and as a part of an overall
investment strategy having risk and return objectives
reasonably suited to the fund and to the institution.
(3) Except as otherwise provided by law other than this
Act, an institution may invest in any kind of property or
type of investment consistent with this Section.
(4) An institution shall diversify the investments of

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an institutional fund unless the institution reasonably
determines that, because of special circumstances, the
purposes of the fund are better served without
diversification.
(5) Within a reasonable time after receiving property,
an institution shall make and carry out decisions
concerning the retention or disposition of the property or
to rebalance a portfolio, in order to bring the
institutional fund into compliance with the purposes,
terms, and distribution requirements of the institution as
necessary to meet other circumstances of the institution
and the requirements of this Act.
(6) A person that has special skills or expertise, or
is selected in reliance upon the person's representation
that the person has special skills or expertise, has a duty
to use those skills or that expertise in managing and
investing institutional funds.
Section 4. Appropriation for expenditure or accumulation
of endowment fund; rules of construction.
(a) Subject to the intent of a donor expressed in the gift
instrument and to subsection (d), an institution may
appropriate for expenditure or accumulate so much of an
endowment fund as the institution determines is prudent for the
uses, benefits, purposes, and duration for which the endowment
fund is established. Unless stated otherwise in the gift

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instrument, the assets in an endowment fund are
donor-restricted assets until appropriated for expenditure by
the institution. In making a determination to appropriate or
accumulate, the institution shall act in good faith, with the
care that an ordinarily prudent person in a like position would
exercise under similar circumstances, and shall consider, if
relevant, the following factors:
(1) the duration and preservation of the endowment
fund;
(2) the purposes of the institution and the endowment
fund;
(3) general economic conditions;
(4) the possible effect of inflation or deflation;
(5) the expected total return from income and the
appreciation of investments;
(6) other resources of the institution; and
(7) the investment policy of the institution.
(b) To limit the authority to appropriate for expenditure
or accumulate under subsection (a), a gift instrument must
specifically state the limitation.
(c) Terms in a gift instrument designating a gift as an
endowment, or a direction or authorization in the gift
instrument to use only "income", "interest", "dividends", or
"rents, issues, or profits", or "to preserve the principal
intact", or words of similar import:
(1) create an endowment fund of permanent duration

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unless other language in the gift instrument limits the
duration or purpose of the fund; and
(2) do not otherwise limit the authority to appropriate
for expenditure or accumulate under subsection (a).
(d) The appropriation for expenditure in any year of an
amount greater than seven percent of the fair market value of
an endowment fund, calculated on the basis of market values
determined at least quarterly and averaged over a period of not
less than three years immediately preceding the year in which
the appropriation for expenditure is made, creates a rebuttable
presumption of imprudence. For an endowment fund in existence
for fewer than three years, the fair market value of the
endowment fund must be calculated for the period the endowment
fund has been in existence. This subsection does not:
(1) apply to an appropriation for expenditure
permitted under law other than this Act or by the gift
instrument; or
(2) create a presumption of prudence for an
appropriation for expenditure of an amount less than or
equal to seven percent of the fair market value of the
endowment fund.
Section 5. Delegation of management and investment
functions.
(a) Subject to any specific limitation set forth in a gift
instrument or in law other than this Act, an institution may

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delegate to an external agent the management and investment of
an institutional fund to the extent that an institution could
prudently delegate under the circumstances. An institution
shall act in good faith, with the care that an ordinarily
prudent person in a like position would exercise under similar
circumstances, in:
(1) selecting an agent;
(2) establishing the scope and terms of the delegation,
consistent with the purposes of the institution and the
institutional fund; and
(3) periodically reviewing the agent's actions in
order to monitor the agent's performance and compliance
with the scope and terms of the delegation.
(b) In performing a delegated function, an agent owes a
duty to the institution to exercise reasonable care to comply
with the scope and terms of the delegation.
(c) An institution that complies with subsection (a) is not
liable for the decisions or actions of an agent to which the
function was delegated.
(d) By accepting delegation of a management or investment
function from an institution that is subject to the laws of
this State, an agent submits to the jurisdiction of the courts
of this State in all proceedings arising from or related to the
delegation or the performance of the delegated function.
(e) An institution may delegate management and investment
functions to its committees, officers, or employees as

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authorized by law of this State other than this Act.
Section 6. Release or modification of restrictions on
management, investment, or purpose.
(a) If the donor consents in a record, an institution may
release or modify, in whole or in part, a restriction contained
in a gift instrument on the management, investment, or purpose
of an institutional fund. A release or modification may not
allow a fund to be used for a purpose other than a charitable
purpose of the institution.
(b) The court, upon application of an institution, may
modify a restriction contained in a gift instrument regarding
the management or investment of an institutional fund if the
restriction has become impracticable or wasteful, if it impairs
the management or investment of the fund, or if, because of
circumstances not anticipated by the donor, a modification of a
restriction will further the purposes of the fund. The
institution shall notify the Attorney General of the
application, and the Attorney General must be given an
opportunity to be heard. To the extent practicable, any
modification must be made in accordance with the donor's
probable intention.
(c) If a particular charitable purpose or a restriction
contained in a gift instrument on the use of an institutional
fund becomes unlawful, impracticable, impossible to achieve,
or wasteful, the court, upon application of an institution, may

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modify the purpose of the fund or the restriction on the use of
the fund in a manner consistent with the charitable purposes
expressed in the gift instrument. The institution shall notify
the Attorney General of the application, and the Attorney
General must be given an opportunity to be heard.
(d) If an institution determines that a restriction
contained in a gift instrument on the management, investment,
or purpose of an institutional fund is unlawful, impracticable,
impossible to achieve, or wasteful, the institution, 60 days
after notification to the Attorney General, may release or
modify the restriction, in whole or part, if:
(1) the institutional fund subject to the restriction
has a total value of less than $25,000;
(2) more than 20 years have elapsed since the fund was
established; and
(3) the institution uses the property in a manner
consistent with the charitable purposes expressed in the
gift instrument.
Section 7. Reviewing compliance. Compliance with this Act
is determined in light of the facts and circumstances existing
at the time a decision is made or action is taken, and not by
hindsight.
Section 8. Application to existing institutional funds.
This Act applies to institutional funds existing on or

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established after the effective date of this Act. As applied to
institutional funds existing on the effective date of this Act,
this Act governs only decisions made or actions taken on or
after that date.
Section 9. Relation to Electronic Signatures in Global and
National Commerce Act. This Act modifies, limits, and
supersedes the Electronic Signatures in Global and National
Commerce Act, 15 U.S.C. Section 7001 et seq., but does not
modify, limit, or supersede Section 101 of that Act, 15 U.S.C.
Section 7001(a), or authorize electronic delivery of any of the
notices described in Section 103 of that Act, 15 U.S.C. Section
7003(b).
Section 10. Uniformity of application and construction. In
applying and construing this uniform Act, consideration must be
given to the need to promote uniformity of the law with respect
to its subject matter among states that enact it.
Section 11. (Blank).
(760 ILCS 50/Act rep.)
Section 12. Repeal. The following Act is repealed:
The Uniform Management of Institutional Funds Act.
Section 12.1. The Religious Corporation Act is amended by

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changing Sections 41, 43, 46e, 46f, 46g, and 46j as follows:
(805 ILCS 110/41) (from Ch. 32, par. 170)
Sec. 41. Upon the incorporation of any congregation, church
or society, all real and personal property held by any person
or trustees for the use of the members thereof, shall
immediately vest in such corporation and be subject to its
control, and may be used, mortgaged, sold and conveyed the same
as if it had been conveyed to such corporation by deed; but no
such conveyance or mortgage shall be made so as to affect or
destroy the intent or effect of any grant, legacy or donation
that may be made to such person or trustee for the use of such
congregation, church or society. However, this limitation on
the disposition of real or personal property does not apply to
the extent that a restriction imposed by a donor on the use of
an institutional fund may be released by the governing board of
an institution under the "Uniform Prudent Management of
Institutional Funds Act", approved September 15, 1973.
(Source: P.A. 83-388.)
(805 ILCS 110/43) (from Ch. 32, par. 172)
Sec. 43. The trustees shall have the care, custody and
control of the real and personal property of the corporation,
subject to the direction of the congregation, church or
society, and may, when directed by the congregation, church or
society, erect houses or buildings and improvements, and repair

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and alter the same, and may, when so directed, mortgage,
incumber, sell and convey any real or personal estate of such
corporation, and enter into all lawful contracts in the name of
and in behalf of such corporation: but no mortgage,
incumbrance, sale or conveyance shall be made of any such
estate, so as to defeat or destroy the effect of any gift,
grant or legacy which may be made to such corporation; but all
such gifts, grants and legacies shall be appropriated and used
as directed or intended by the person or persons making the
same. However, this limitation on the disposition of real or
personal property does not apply to the extent that a
restriction imposed by a donor on the use of an institutional
fund may be released by the governing board of an institution
under the "Uniform Prudent Management of Institutional Funds
Act", approved September 15, 1973.
(Source: P.A. 83-388.)
(805 ILCS 110/46e) (from Ch. 32, par. 180)
Sec. 46e. The trustees of every such congregation, church,
or society, under the patronage, control, direction, or
supervision of any ecclesiastical body, or diocesan, or like
ecclesiastical officer, after the same has become incorporated
under Sections 46a to 46h, inclusive, of this Act, and their
successors, shall have perpetual succession with power to adopt
a common seal, which may be altered and changed at pleasure,
contract, and be contracted with, sue and be sued, plead and be

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impleaded, by the corporate name of such congregation, in all
courts, whatever; to receive, hold, dispose of, mortgage, and
convey any kind of property; to make and adopt by-laws for
their government, not inconsistent with Sections 46a to 46h,
inclusive, of this Act, or with the rules and regulations of
the sect or denomination having the charge or patronage of the
corporation; and shall alone have power to make all contracts
needful in the management of the temporal affairs of such
congregation, church, or society: but no conveyance, or
mortgage shall be made to affect, or destroy the intent of any
grant, legacy, or donation, that may be made to any person, or
trustee, for the use of such congregation, church, or society,
or for the use of any sect, or denomination. However, this
limitation on the disposition of real or personal property does
not apply to the extent that a restriction imposed by a donor
on the use of an institutional fund may be released by the
governing board of an institution under the "Uniform Prudent
Management of Institutional Funds Act", approved September 15,
1973. The trustees of any corporation, organized under Sections
46a to 46h, inclusive, of this Act, which is, or may be, under
the control, patronage, direction or, supervision of any
ecclesiastical body, diocesan, or like officer, shall hold and
control, invest or reinvest the real and personal property of
such corporation, and contract with reference thereto,
according to the "Uniform Management of Institutional Funds
Act", or the rules, regulations, constitution, articles of

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association, by-laws, or canons of such ecclesiastical body,
diocesan, or like ecclesiastical officer.
(Source: P.A. 83-388.)
(805 ILCS 110/46f) (from Ch. 32, par. 181)
Sec. 46f. The trustees of any corporation formed for
religious purposes under Sections 46a to 46h, inclusive, of
this Act, may receive land in the name of such corporation by
gift, legacy or purchase, and make, erect and build thereon,
such houses, buildings, or other improvements, as may be
necessary for the convenience and comfort of such congregation,
church, society, or corporation, and may lay out and maintain
thereon a burying ground, and may maintain and build thereon
schools, orphan asylums, or such other improvements or
buildings as may be necessary for the educational and
eleemosynary purposes of such congregation, church, society,
or corporation: but such property shall not be used except in
the manner expressed in the gift, grant or bequest. However,
this limitation on the disposition of real property does not
apply to the extent that a restriction imposed by a donor on
the use of an institutional fund may be released by the
governing board of an institution under the "Uniform Prudent
Management of Institutional Funds Act", approved September 15,
1973. If no use or trust is so expressed, no such property
shall be used except for the benefit of the corporation,
church, society, sect, or denomination for which it was

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intended, or for any religious, educational or eleemosynary
purpose approved by such corporation, church, society, or
ecclesiastical body, diocesan, or like ecclesiastical officer.
(Source: P.A. 84-549.)
(805 ILCS 110/46g) (from Ch. 32, par. 182)
Sec. 46g. Any ecclesiastical body, or diocesan, or like
ecclesiastical officer, may elect, or nominate, or appoint,
according to the usages, customs, rules, regulations, articles
of association, constitution, by-laws or canons of such
ecclesiastical body, diocesan or like ecclesiastical officer,
or any sect or denomination, 2 or more members of such sect, or
denomination, residing respectively in any ecclesiastical
districts, or dioceses, over which such ecclesiastical body, or
diocesan, or like ecclesiastical officer shall have
jurisdiction, as trustees, who may become incorporated under
Sections 46a to 46k, inclusive, of this Act, and may take,
hold, regulate, control and dispose of any real, personal or
mixed property in and outside of this State, devoted to
eleemosynary, educational, cemetery or religious purposes (not
exclusively belonging to, or used by, any particular
congregation, church or society which as an organization,
incorporated or unincorporated, is in the opinion of its
trustees, wardens, vestrymen or other officers whose powers and
duties are similar to trustees financially able to own and
maintain such property) for the use of all of the members of

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the sect, or denomination within said districts, or dioceses,
or for the use and benefit of such ecclesiastical body,
diocesan, or like ecclesiastical officer, or of any parishes,
congregations, societies, churches, missions, benevolent,
charitable or educational institutions existing under or
related to the same, according to Sections 46a to 46k,
inclusive, of this Act, according to the "Uniform Prudent
Management of Institutional Funds Act", approved September 15,
1973, or according to the usages, customs, rules, regulations,
articles of association, constitution, by-laws or canons of
such ecclesiastical body, diocesan, or like ecclesiastical
officer. The presiding officer or authorized representative of
such ecclesiastical body or diocesan, or like ecclesiastical
officer, shall, by virtue of his office, be a trustee of any
such corporation and the number, term of office and
qualifications of said trustees, their removal and succession
and their powers, duties and manner of appointment, shall be
regulated in the manner provided in Sections 46a to 46k,
inclusive, of this Act. An affidavit showing the appointment of
such trustees made and executed by the presiding officer, or
duly authorized representative of such ecclesiastical body, or
diocesan, or like ecclesiastical officer, or such other person
as may be designated by said trustees for such purpose, in
substantially the same manner and form as provided in Section
46b of this Act shall be filed in the office of the recorder in
the county in which the principal office or place of worship of

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such corporation is intended to be situated and also a
duplicate copy in the office of the Secretary of State,
whenever any district or diocese, under the jurisdiction or
patronage of such ecclesiastical body, or diocesan, or like
ecclesiastical officer, comprises more than any one county of
this State or extends outside of the State.
It shall be the duty of the recorder and the Secretary of
State to record such affidavits and said affidavits or copies
thereof, duly certified by the recorder and Secretary of State,
shall be received as evidence of the due incorporation of the
organization. No affidavit of appointment after the first need
be filed for record.
(Source: P.A. 83-358.)
(805 ILCS 110/46j) (from Ch. 32, par. 185)
Sec. 46j. Any church, congregation, society or
corporation, heretofore or hereafter formed for religious
purposes or for the purpose of religious worship under any of
the provisions of this Act or under any law of this State
incorporating or for the incorporation of religious
corporations or societies, may receive land by gift, legacy or
purchase and make, erect, and build thereon such houses,
buildings, or other improvements as may be necessary for the
convenience, comfort and welfare of such church, congregation,
society or corporation, and may lay out and maintain thereon a
cemetery or cemeteries, or a burying ground or grounds and may

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maintain and build thereon schools, orphan asylums, or such
other improvements or buildings as may be necessary for the
educational, eleemosynary, cemetery and religious purposes of
such congregation, church, society or corporation; but no such
property shall be used except in the manner expressed in the
gift, grant or legacy. However, this limitation on the
disposition of real property does not apply to the extent that
a restriction imposed by a donor on the use of an institutional
fund may be released by the governing board of an institution
under the "Uniform Prudent Management of Institutional Funds
Act", approved September 15, 1973. Or if no use or trust is so
expressed, no such property shall be used except for the
benefit of the congregation, corporation, church or society,
for which it was intended, or for such religious, educational
or eleemosynary purpose as may be approved by such
congregation, church, society or corporation or the
ecclesiastical body having jurisdiction or patronage of or
charge over such congregation, corporation, church or society.
Any corporation, heretofore or hereafter formed for
religious purposes under any of the provisions of this Act or
under any other law of this State incorporating or for the
incorporation of religious corporations or societies, which
now or hereafter owns, operates, maintains or controls a
cemetery or cemeteries, or a burial ground or grounds, is
hereby authorized and empowered to accept by gift, grant,
contribution, payment, or legacy, or pursuant to contract, any

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sum of money, funds, securities or property of any kind, or the
income or avails thereof, and to hold the same in trust in
perpetuity for the care of such cemetery or cemeteries, burial
ground or grounds, or for the care of any lot, grave or crypt
therein; or for the special care of any lot, grave or crypt or
of any family mausoleum or memorial, marker, or monument in
such cemetery or cemeteries, burial ground or grounds. No gift,
grant, legacy, payment or other contribution shall be invalid
by reason of any indefiniteness or uncertainty as to the
beneficiary designated in the instrument creating the gift,
grant, legacy, payment or other contribution. If any gift,
grant, legacy, payment or other contribution consists of
non-income producing property, such corporation is authorized
and empowered to sell such property and to invest the funds
obtained in accordance with the provisions of the "Uniform
Prudent Management of Institutional Funds Act", approved
September 15, 1973, or the provisions of the next succeeding
paragraph.
The trust funds authorized by this Section shall be held
intact and, unless otherwise restricted by the terms of the
gift, grant, legacy, contribution, payment, contract or other
payment shall be invested, from time to time reinvested, and
kept invested by such corporation in such investments as are
authorized by the "Uniform Prudent Management of Institutional
Funds Act", and according to such standards as are prescribed,
for trustees under that Act and the "Trusts and Trustees Act",

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approved September 10, 1973, as amended, and the net income
only from such investments shall be allocated and used for the
purposes set forth in the paragraph immediately preceding; but
the trust funds authorized by this Section may be commingled
and may also be commingled with any other trust funds received
by such corporation for the care of the cemetery or cemeteries,
or burial ground or grounds, or for the care or special care of
any lot, grave, crypt, private mausoleum, memorial, marker, or
monument whether received by gift, grant, legacy,
contribution, payment, contract or other conveyance heretofore
or hereafter made to such corporation.
The trust funds authorized by this Section, and the income
therefrom, shall be exempt from taxation and exempt from the
operation of the laws against perpetuities and accumulations.
(Source: P.A. 83-1362.)