Founder
As described in the previous post on family foundations, in order to establish a foundation, the founder must submit a declaration of establishment. However, the founder must be a natural person with full legal capacity. The declaration of establishment may be included in the founding deed or in a will.
Importantly, a family foundation may be established by several founders, unless the foundation is established by will. In such a case, the testator will be the sole founder of the family foundation.
Under the Family Foundations Act, the rights and obligations of the founder include:
- drawing up the articles of association – including the specific purpose of the family foundation,
- the right to delegate the exercise of their powers to another person in the statutes, specifying the scope of such delegation,
- no liability for the family foundation’s obligations,
- the right to submit comments, opinions or recommendations concerning the family foundation’s activities to its governing bodies,
- contributing assets to cover the founding fund of a value specified in the statutes,
- the ability to represent the family foundation within the organisation,
- the right to appoint and dismiss a member of the management board or members of the supervisory board – unless the articles of association provide otherwise,
- the right to establish a supervisory board in the articles of association,
- establishing a beneficiaries’ meeting in the articles of association,
- the right to receive certified copies, extracts, certificates and information from the register,
- registration of the family foundation in the register of family foundations.
Beneficiary
As a general rule, a beneficiary of a family foundation may be a natural person or an organisation. The beneficiary is entitled to submit comments, opinions or recommendations concerning the foundation’s activities to the governing bodies of the family foundation. The beneficiary also has the right to obtain information about the family foundation’s activities in person or through a person authorised by them, in particular to request access to the family foundation’s documents, including the articles of association, financial statements and accounting records, and to make copies and notes of these or to request explanations from the board. The beneficiary has the right to participate in the beneficiaries’ meeting, provided that such a right is granted to them by the articles of association. Importantly, a beneficiary to whom the family foundation has made a payment contrary to the law or the provisions of the articles of association is obliged to repay it.
Assets of a family foundation
The establishment of a family foundation requires the contribution of assets, and the initial fund – of a value specified in the articles of association – may not be less than PLN 100,000.
Assets contributed to the foundation by the founders are understood to mean assets contributed by the founder or their spouse, descendants, ascendants or siblings, whilst assets contributed by the family foundation are understood to mean assets contributed by other persons. The proportion is determined by the ratio of the total value of the assets contributed to the family foundation attributable to a given founder or family foundation to the total value of the assets contributed by all founders and the family foundation.
As a general rule, a family foundation shall not be entitled to return to the founder, in whole or in part, the assets contributed to cover the founding fund, unless the Act provides otherwise. This is because, in accordance with the nature of a family foundation, the family assets contributed to the foundation do not belong to its individual members, as the foundation itself is the owner; neither the founder nor the beneficiaries of the foundation are entitled to specific shares in these assets, but only to receive payments from the foundation as specified in its statutes.
The value of assets contributed to a family foundation in the form of foreign currency is converted into zlotys at the average exchange rate for that currency announced by the National Bank of Poland on the last working day preceding the date of contribution.
Frequently asked questions
Who can be a founder of a family foundation and in what form should the declaration of its establishment be made?
Only a natural person with full legal capacity can be a founder. The declaration of establishment of a foundation may be made in the articles of association or in a will, whereby in the case of a will, the testator is the sole founder.
What are the main rights and obligations of the founder when creating a foundation?
The founder establishes the statute, defines the purpose of the foundation and contributes assets to cover the founding fund. The founder has the right to appoint and dismiss members of the management board and supervisory board, as well as to direct remarks to the foundation’s bodies, but is not liable for its obligations.
Who can become a beneficiary and what information rights do they have?
A beneficiary may be a natural person or organization who has the right to direct remarks to the foundation’s bodies. The beneficiary has the right to obtain information about the foundation’s activities, including access to documents, financial reports and accounting books, as well as making copies thereof.
Must a beneficiary return benefits received from the foundation?
Yes, a beneficiary is obligated to return benefits if they were provided contrary to legal provisions or the provisions of the foundation’s statute. This is a key obligation arising from the principles of operation of this legal form.
What is the minimum value of the founding fund of a family foundation?
The founding fund must have a value of no less than 100,000 zloty. This amount is specified in the statute and must be contributed to cover the foundation’s assets at the time of its establishment.
Can the founder recover assets contributed to the family foundation?
As a rule, a family foundation is not entitled to return assets contributed to cover the founding fund in whole or in part. These assets become the property of the foundation, and the founder and beneficiaries have the right only to receive payments specified in the statute.
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She specializes in commercial and civil law. She has gained experience in Warsaw law firms providing comprehensive services to companies and a law firm specializing in labor law. She has extensive experience in corporate consulting. She has participated in mergers and acquisitions at every stage of the process, from pre-transaction legal examination to fulfillment of regulatory requirements related to the transformation process. She prepares and reviews contracts entered into by clients and advises in cases of…
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