Introduction
The Polish Family Foundation Act of 2023 introduced a novel legal vehicle for intergenerational wealth preservation, one that places the founder—termed fundator in the statutory scheme—at the center of its governance architecture. Unlike Anglo-American trust structures, where the settlor’s role often diminishes upon creation of the trust, the Polish family foundation contemplates an ongoing, dynamic relationship between founder and foundation. This Article examines the legal contours of founder status under Polish law, analyzing eligibility requirements, the scope of founder prerogatives, and the consequences of incapacity or death for foundation governance.
I. Eligibility Requirements: The Tripartite Test
The Family Foundation Act establishes three cumulative prerequisites for founder status, each reflecting distinct policy considerations.
A. The Natural Person Requirement
First, and perhaps most notably, only natural persons may serve as founders. Corporate entities, other foundations, and governmental bodies are categorically excluded from this role, irrespective of their financial capacity or legitimate business rationale for establishing such a structure. This limitation distinguishes Polish family foundations from certain foreign analogues—most notably Liechtenstein’s Stiftung and various common law trust arrangements—where juridical persons may assume settlor or founder functions.
The rationale underlying this restriction appears twofold. From a doctrinal perspective, the family foundation is conceived as an instrument of personal wealth planning, designed to implement the testamentary and inter vivos intentions of human principals. From a policy standpoint, the natural person requirement arguably serves an anti-abuse function, preventing the interposition of corporate layers that might obscure beneficial ownership or frustrate creditor claims.
B. Full Legal Capacity
Second, the prospective founder must possess full legal capacity (pełna zdolność do czynności prawnych). Minors—even those possessing substantial inherited wealth—cannot establish family foundations. Similarly, persons subject to either partial or complete judicial incapacitation (ubezwłasnowolnienie) are barred from founder status.
Critically, this requirement operates not merely at the moment of foundation establishment but throughout the founder’s tenure. The temporal dimension of this requirement generates significant interpretive questions, addressed in Part III below, regarding the consequences of supervening incapacity.
C. The Constitutive Declaration
Third, the prospective founder must execute a formal declaration establishing the family foundation. This declaration may take one of two forms: an inter vivos instrument (the founding act) or a testamentary disposition. Both forms require notarial authentication, reflecting the legislature’s evident concern for evidentiary certainty and informed decision-making in transactions of such magnitude.
II. The Bifurcated Nature of Founder Status
Sound analysis of founder rights and obligations requires disaggregating two conceptually distinct aspects of founder status: the formal attribute of being a founder and the substantive capacity to exercise founder prerogatives.
A. Formal Status as an Enduring Characteristic
A person who validly establishes a family foundation retains founder status in perpetuity—even posthumously—for purposes of tax classification, historical attribution, and regulatory compliance. The founder’s identity remains relevant for determining whether beneficiary distributions qualify for favorable tax treatment under Article 21(1)(157) of the Personal Income Tax Act, which extends preferential rates to distributions received by the founder or persons within the so-called “zero group” of close relatives.
B. Substantive Capacity as a Contingent Attribute
The capacity to exercise founder prerogatives, by contrast, depends upon the founder’s continued legal capacity and, ultimately, survival. Death extinguishes the ability to exercise founder rights, though it does not retroactively vitiate founder status. Supervening incapacity similarly suspends—but does not terminate—the substantive dimension of founder status.
This distinction carries significant practical implications. A foundation cannot be treated as having never possessed a founder merely because that founder subsequently died or lost capacity. Rather, the foundation continues to “have” a founder in the formal sense; it simply lacks a person capable of exercising founder functions at the relevant moment.
III. Multiple Founders: Principles of Collective Action
The Family Foundation Act expressly contemplates foundations established by multiple founders acting jointly. In such cases, founders exercise their rights and discharge their obligations collectively, with the statute directing mutatis mutandis application of co-ownership principles from the Civil Code.
A. Decision-Making Thresholds
This statutory cross-reference imports a familiar distinction between ordinary and extraordinary acts. Decisions falling within the scope of ordinary management require majority approval, calculated according to the proportional value of each founder’s contribution to the foundation fund. Decisions exceeding ordinary management—the precise boundaries of which must be determined ad hoc—require unanimity.
B. Consequences of Partial Incapacity or Death
When one among several founders dies or loses legal capacity, the remaining founders continue exercising their collective rights without participation of the affected individual. The consequence is a proportional increase in each active founder’s relative influence over foundation affairs—a result that, while potentially perceived as inequitable by the incapacitated founder’s heirs, reflects sound policy considerations favoring operational continuity.
This approach parallels the treatment of deceased co-founders. Just as death of one founder does not suspend the rights of survivors, incapacity of one founder cannot paralyze the foundation’s governance structure. The alternative—requiring unanimous consent including that of an incapacitated person—would effectively render the foundation ungovernable.
IV. The Founder’s Rights: A Taxonomy
The statute eschews an exhaustive enumeration of founder rights, opting instead for a framework that accommodates both mandatory statutory entitlements and optional charter-based prerogatives.
A. Mandatory Statutory Rights
Certain founder rights inhere by operation of law and cannot be abrogated by charter provision. These include: the right to submit observations, opinions, or recommendations to foundation organs; standing to challenge organ resolutions that contravene the charter or applicable law; the right to inspect registry files; and the right to obtain certified copies of registry documents.
B. Default Rights Subject to Charter Modification
A second category encompasses rights that the statute confers presumptively but which the charter may restrict or eliminate. Principal among these are: consent rights regarding changes to beneficiary designations; eligibility to serve as a beneficiary; authority to appoint and remove members of the management board and supervisory board; and preferential rights to remaining assets upon dissolution.
C. Optional Charter-Based Rights
The statute’s permissive framework allows founders to reserve additional prerogatives through charter provisions. These may include veto rights over specified transactions, exclusive authority to amend particular charter provisions, or the right to serve permanently on a designated organ. The outer limits of such self-dealing provisions remain to be tested in practice.
V. Founder Obligations
The founder’s role encompasses correlative duties as well as rights. Mandatory obligations include: contributing assets to the foundation fund; preparing an inventory of contributed property with proportional attribution among multiple founders; establishing a charter containing all requisite elements; and filing the foundation registration application.
A notable conditional obligation arises when beneficiary rolls exceed twenty-five persons: in such circumstances, establishment of a supervisory board transitions from a founder prerogative to a mandatory requirement.
VI. Defective Formation and the Curative Effect of Registration
Polish law assigns substantial curative effect to foundation registration, analogous to the treatment of defectively formed corporations upon entry in the commercial register. Where a person lacking full legal capacity nonetheless succeeds in registering a family foundation—perhaps through failure of the notary to detect the incapacity—the registration itself validates the foundation’s existence.
A. The “No Foundation Without a Founder” Principle
The statute cannot coherently be read to permit existence of a family foundation lacking any founder whatsoever. Such a construction would undermine the statutory scheme’s reliance on founder identity for tax classification, proportional attribution of contributions, and historical accountability. Accordingly, where registration occurs despite defects in the founding declaration, the person who executed that declaration must be recognized as founder—notwithstanding the technical invalidity of their constitutive act.
B. Limitations on Curative Effect
Registration cures formal defects; it does not confer substantive capacity. A founder who lacked capacity at formation, and who continues to lack capacity post-registration, remains unable to exercise founder prerogatives requiring legal capacity. Should such person subsequently attain full capacity—whether through reaching majority or through judicial restoration of capacity—they may thereafter exercise the full panoply of founder rights.
VII. Irrevocability of Founder Status
The statute provides no mechanism for renunciation of founder status. This design choice reflects recognition that founder status entails obligations as well as privileges; permitting unilateral abdication would enable founders to shed inconvenient duties while potentially retaining benefits through separate arrangements.
The practical consequence is that founder status, once acquired, persists for life. The scope of exercisable rights may fluctuate with the founder’s legal capacity, but the foundational attribute of being a founder admits no voluntary termination.
VIII. Role Accumulation: The Founder as Fiduciary, Beneficiary, and Employee
Nothing in the statutory scheme precludes a founder from simultaneously occupying multiple roles within the foundation structure. A founder may serve as sole and permanent managing director (if the charter so provides), as supervisory board member, as beneficiary, or even as foundation employee. Each role operates under its own regulatory framework, but personal union of multiple functions is expressly contemplated.
IX. International Dimensions
Foreign nationals may establish Polish family foundations without restriction—a legislative choice evidently designed to enhance the vehicle’s competitiveness in the market for wealth planning structures. However, questions of legal capacity are governed by the founder’s lex patriae under Polish private international law principles. For persons holding multiple citizenships, the governing law is that of the state with which the individual maintains the closest connection.
Conclusion
The Polish family foundation represents a carefully calibrated instrument for intergenerational wealth preservation, one that assigns the founder a central and enduring role in foundation governance. Prospective founders would be well advised to exercise their considerable charter-drafting latitude thoughtfully, with particular attention to succession planning for founder prerogatives and contingency mechanisms for potential incapacity. Where multiple founders participate, careful articulation of decision-making protocols and dispute resolution mechanisms may prevent governance paralysis. The statute provides a flexible framework; the challenge lies in deploying that flexibility to serve the founder’s authentic long-term objectives.
