Only a natural person with full legal capacity can be the founder of a family foundation. Therefore, a legal entity or other organizational unit cannot establish it. This limitation is due to the role and influence of the founder on the family foundation. It also results from the need for the founder to make numerous decisions. Who can become a founder? What are the responsibilities of a founder in a family foundation? The answers to these questions are presented below.
Table of Contents
- Family foundation in Poland
- Founder in a family foundation – who can become one?
- Founder in a family foundation – what are his responsibilities?
- 1. Submitting a declaration of forming the foundation
- 2. Representing the family foundation in the organization
- 3. The creation of statutes
- 4. Contributing assets to cover the founding capital and preparing an inventory of assets
- 5. Appointing and dismissing members of the management board
- 6. Establishing a supervisory board
- 7. Establishing an assembly of beneficiaries
- 8. Appointing a liquidator or liquidators
- 9. Registering in the register of family foundations
- Summary
Family foundation in Poland
One of the premises of a family foundation is to formally separate family and business. A family foundation is supposed to serve as a family treasury. It should provide the family with financial resources. Moreover, it should follow the founder’s vision and honour the values adopted by him in business. Thus, the family foundation serves as a means to achieve the goal of ensuring the functioning of enterprise for generations. Its second objective is to secure the financial needs of beneficiaries.
Founder in a family foundation – who can become one?
According to the Family Foundation Act, only a natural person with full legal capacity can be a founder of a family foundation. Another condition is that such a person:
- has made a declaration of establishing a family foundation in the founding deed, or
- has made a declaration of establishing a family foundation in a will.
The rights and obligations of the founder are inalienable. However, the founder may entrust the exercise of his powers to another person in the statute. The statute should specify the scope of the entrusted rights and duties.
If the family foundation has more than one founder, they exercise the rights and obligations of the founder jointly, unless the statute provides otherwise.
The founder may provide comments, opinions or recommendations regarding the foundation’s activities to its bodies. However, he is not liable for its obligations.
Founder in a family foundation – what are his responsibilities?
1. Submitting a declaration of forming the foundation
To form a family foundation it is necessary to submit a declaration of its establishment in a founding deed or a will. As mentioned above, it is the founder himself who submits this declaration. A family foundation established by the founding deed can be formed by more than one founder. Consequently, a family foundation established in a will can have only one founder.
2. Representing the family foundation in the organization
A family foundation in organization is established upon drawing up its founding deed or the publication of a will. The founder or a proxy appointed by the founder represents the foundation. In cases specified by the Act on Family Foundations, it may be represented by a management board.
3. The creation of statutes
One of the duties of the founder is to establish the statutes of the family foundation. The statutes is prepared in the form of a notarial deed.
The founder specifies in the statutes the following information:
- the name of the family foundation,
- the registered office of the family foundation,
- the detailed purpose of the family foundation,
- the beneficiary or the method of determining beneficiary and the scope of his powers,
- the time for which the foundation is established, if specified
- the value of the initial fund,
- the rules for amending the statutes.
4. Contributing assets to cover the founding capital and preparing an inventory of assets
The founder contributes assets to the family foundation to cover the initial fund. The value is specified in the statutes. At the same time, it cannot be less than 100 000 PLN. Additionally, the founder prepares a written list of the assets contributed to the family foundation to cover the initial fund.
5. Appointing and dismissing members of the management board
In accordance with the Family Foundations Act, a natural person with full legal capacity may be appointed as a member of the management board. Unless the statutes provide otherwise, it is the founder who appoints and dismisses board members in the foundation. The situation looks different in the case of a family foundation established in a will. The founder specifies in the will the person or persons who will be appointed as members of the first management board.
6. Establishing a supervisory board
The founder may establish a supervisory board in the statutes. If the number of beneficiaries exceeds 25, the supervisory board is mandatory. Unless the statutes provide otherwise, the appointment and dismissal of members of the supervisory board are made by the founder. After his or her death – by the assembly of beneficiaries. In the case of a family foundation established in a will, there is a difference. The founder may specify in the will the person or persons who will be appointed as members of the first supervisory board.
7. Establishing an assembly of beneficiaries
The founder establishes the assembly of beneficiaries in the statutes. It consists of beneficiaries who have been granted the right to participate in it by the statutes.
8. Appointing a liquidator or liquidators
In the event that:
- the family foundation has not been registered with the registry court within 6 months from the date of creation of its founding deed or announcement of the will, or
- the court decision refusing registration has become final,
and the family foundation in organization is not able to immediately satisfy in full the claims of beneficiaries and third parties, the board of directors shall liquidate it. If it does not have a board of directors, a liquidator or liquidators shall be appointed by the founder, the assembly of beneficiaries or the court of registration
9. Registering in the register of family foundations
As a rule, the founder registers the entity in the Register of Family Foundations. In the case of a family foundation established by a will, the management board is responsible for registration. All members of the family foundation’s management board must sign under the registration.
The application for registration in the Register of Family Foundations includes:
- The name of the family foundation, its registered office and address,
- The amount of the family foundation’s initial fund
- The full names and PESEL numbers of the members of the management board,
- The full names and PESEL numbers of the members of the supervisory board,
- The full names and PESEL numbers of the beneficiaries who are natural persons participating in the assembly of beneficiaries,
- The name, surname, and address for deliveries of the founder, if he is authorized to appoint the management board,
- The duration of the family foundation, if it is specified.
The application for registration in the Register of family foundations is a request for entry in this Register.
Summary
The Act on the Family Foundation of the 26th of January 2023 provides that only a natural person with full legal capacity may be its founder. The provisions grant the founder extensive powers. They aim at ensuring the unrestrained functioning of the enterprise for generations. The Act also imposes numerous obligations on the founder. Among them, there are activities such as submitting a declaration on the establishment of the foundation, creating its statute, establishing a supervisory board, an assembly of beneficiaries, or liquidators. Last but not least, the founder is responsible for submitting an application to the register of family foundations.
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