THE OKLAHOMA BAR JOURNAL 32 | JUNE 2024 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. impression that the charity’s attorneys represent the client in place of the charitable organization itself. It is important to reinforce that you represent the client’s interests, and while the client’s and charity’s goals may align for this purpose, the charitable organization’s attorneys represent the charitable organization generally and not your client personally.28 We’re Better Together29 Collaboration with a charitable organization, most commonly a facilitating community foundation, is largely recognized as a best practice. The joining of professional and philanthropic forces helps ensure both the client’s and the charitable organization’s needs are met. This partnership may grant access to the charity’s planned giving expertise at little or no cost to the attorney or client and serve as an intermediary at times between the ultimate charitable beneficiary and the client. Depending on internal policy and the client’s wishes, the charitable organization may quarterback the property transfer process. Even with anonymous gifts, the charity’s staff will often coordinate with the client’s advisors and attorneys to facilitate the requisite legal work and tax analysis. The Best Things in Life Are Free (Mostly) Community foundations will eagerly provide complementary guidance and services at no upfront cost to the client or the attorney. In many cases, these complementary services are eventually funded by asset management fees on the gift corpus when it is ultimately held in endowment or as another charitable instrument. Services commonly rendered include supplying charitable gift language for estate plans and gift agreements, generating tax calculations, crafting comparative gift type assessments, naming rights agreements and drafting gift contracts for lifetime gifts. For legacy gifts made within estate planning documents, the community foundation will likely provide recommendations, but the instruments should be drafted by the client’s independent counsel.30 GIVING WITH STRINGS ATTACHED: BEST PRACTICES FOR RESTRICTED GIFTS More often than not, gifts of real property are sold to fund the mission of the charitable organization rather than maintained and managed by the charitable organization itself. Frequently, a client envisions a “perfect use for this property” that, in reality, is not a viable option for the recipient charitable organization. For example, the donor owns a property they want developed and used for a certain purpose. Even in instances when this is possible in the near future, it is often impossible to guarantee this use can continue long-term and that the property will not need to be used for a different purpose in the future or be ultimately sold. Additionally, the use the donor desires may require an additional gift of capital to maintain the property, build new structures, renovate existing structures and/or sustain new program components. While these restricted gifts can occasionally be accommodated, commonly, it is either impractical or impossible. It will help your client anticipate and understand the reasoning behind the likely response if you alert them to the possibility (if not probability) that the charitable organization will only accept the property if it can be liquidated or is accompanied with additional funds.31 In the rare instance the donor has a specific restriction for the property in mind and the
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