Introduction
The charter (statut) constitutes the foundational legal instrument of every Polish family foundation (fundacja rodzinna). As the governing document that delineates the operational framework, inter-organ relationships, beneficiary entitlements, and institutional objectives, the charter occupies a position analogous to that of articles of incorporation in corporate law, yet with distinctive characteristics that reflect the unique nature of private foundation governance. The proper construction of such an instrument demands a sophisticated approach that accommodates both the immediate exigencies of familial wealth management and the extended temporal horizon inherent in multigenerational succession planning.
I. Legal Character and Formal Requirements
A. The Charter as an Organic Instrument
The charter of a family foundation serves as an organic act—that is, an instrument that shapes the internal organization of the entity, delineates the competencies of its governing bodies, and specifies the legal position of beneficiaries. Unlike the declaration of establishment (oświadczenie o ustanowieniu fundacji), which constitutes the creative act bringing the foundation into existence, the charter regulates the comprehensive operational framework of an already-constituted structure.
The legislature has mandated that the charter be executed in the form of a notarial deed (akt notarialny) under penalty of nullity (ad solemnitatem). This formal requirement applies with equal force to the original establishment of the charter by the founder and to any subsequent amendments thereto. Even where an amendment is effectuated through a resolution of a collective body, notarial documentation remains indispensable.
Notably, the preparation of a consolidated text (tekst jednolity) following amendments does not require adherence to any particular form—ordinary written form suffices. This procedural accommodation, however, in no way diminishes the obligation to execute the underlying amendment itself in notarial form.
B. Authority to Establish the Charter
The right and obligation to establish the charter vests exclusively in the founder (fundator). Where multiple founders exist, they must act jointly, unless the charter itself subsequently provides for alternative arrangements governing the exercise of founder rights.
The permissibility of acting through an agent (pełnomocnik) in establishing the charter merits particular attention. Such delegation appears permissible, notwithstanding the absence of express statutory authorization. The power of attorney must, in such circumstances, be executed in notarial form and should possess at least a general character (pełnomocnictwo rodzajowe). This conclusion derives from the absence of any statutory prohibition on representation and from a functional assessment of the transaction’s nature—if subsequent charter amendments may be delegated to other persons or bodies, it proves difficult to justify requiring the founder’s personal participation in the original establishment.
Considerable complexity arises in cases involving testamentary establishment where the founder dies before executing the charter. The statute does not expressly provide a mechanism for remedying this lacuna. Scholarly commentary has advocated the analogical application of provisions governing public foundations, which permit charter establishment by persons obligated under the rules concerning testamentary instructions (polecenie testamentowe).
II. Mandatory Charter Provisions
A. Name and Registered Office
The name (nazwa) may be freely selected, provided it incorporates the designation “Fundacja Rodzinna” (Family Foundation)—without interpolation of other elements between these words and without declension. In practice, founders frequently incorporate the family surname or appropriate acronyms. Given the absence of public internet access to the family foundation register, the inclusion of distinctive elements merits consideration to avoid conflicts with preexisting names.
The registered office (siedziba) designates a locality within Polish territory. This should not be conflated with the address, which constitutes a separate entry in the register. The managing body may, in fact, maintain its actual place of operations elsewhere.
B. Specific Purpose
The specific purpose (cel szczegółowy) concretizes the statutory general purpose (asset accumulation, management in the interest of beneficiaries, and provision of benefits). Such purpose must conform to applicable law and principles of social coexistence (zasady współżycia społecznego).
Empirical research reveals that founders most frequently articulate the following objectives: protection of assets against fragmentation through inheritance, asset multiplication through foundation activities, securing the subsistence needs of beneficiaries, financing education or medical treatment, and preservation of family reputation.
Precise formulation of purpose carries practical significance—its realization or the impossibility of further pursuit constitutes grounds for dissolution. Consideration should also be given to establishing a hierarchy of purposes in the event of conflict.
C. Designation of Beneficiaries and Scope of Entitlements
The charter must identify beneficiaries (beneficjenci) or specify the method of their determination. Identification may be nominal or abstract—through articulation of criteria (e.g., descendants of the founder, persons satisfying specified conditions). Conditioning beneficiary status upon attainment of a particular age, educational achievement, matrimonial status, or other circumstances is permissible.
Beneficiaries need not receive equal treatment. The founder possesses discretion to differentiate the amount, frequency, and type of benefits. Both pecuniary and non-pecuniary benefits (e.g., rights of use respecting real property) may be conferred, whether on a one-time or recurring basis, unconditionally or contingent upon satisfaction of prerequisites.
Practice has developed diverse models: mandatory benefits (conferred by operation of the charter), discretionary benefits (dependent upon organ determination), application-based benefits (requiring beneficiary initiative), and purpose-specific benefits (designated for particular objectives such as property acquisition).
D. Rules Governing the Beneficiary Register
The beneficiary register (lista beneficjentów) possesses declaratory character—it confirms status derived from the charter rather than creating such status. The charter establishes the registration procedure, time limits for processing applications, and any internal appellate mechanism. Provisions protecting the confidentiality of individual beneficiary data vis-à-vis other beneficiaries may be incorporated.
E. Procedure for Renunciation of Rights by Beneficiaries
The statute mandates written form with notarially certified signature for declarations of renunciation. The charter should elaborate upon the procedure—for instance, it may introduce a period for deliberation to guard against precipitous decisions. Complete exclusion of the right of renunciation itself is impermissible.
F. Duration
This element is mandatory only where the duration is to be determinate. Absence of any provision in this regard signifies establishment for an indefinite period. Duration may be specified in years, by reference to a calendar date, or through reference to an event (e.g., realization of purpose). Expiration of a determinate period does not automatically terminate the foundation—it merely constitutes grounds for adoption of a dissolution resolution.
G. Value of Initial Fund
The minimum value stands at PLN 100,000. The value of contributed assets may exceed this threshold. Where multiple founders exist, the charter should specify contribution ratios—this bears significance for tax purposes and for settlement upon dissolution.
H. Organization of Governing Bodies and Representation Rules
The charter must regulate the appointment, removal, and competencies of members of all governing bodies. Absent such provisions, the foundation might lose its capacity to function.
The statute introduces default rules (e.g., joint representation by two management board members where the board is multi-member, three-year terms for board members), which the charter may modify. Single-member representation, extension or reduction of terms, and limitation of removal rights to important causes all constitute permissible variations.
The manner of representation warrants particular attention and clarity. Registration practice reveals frequent difficulties arising from ambiguous or internally contradictory provisions in this regard.
I. Entity Authorized to Approve Management Board Actions During Organization
A foundation in organization is represented by the founder or the founder’s agent. The liability of such persons ceases upon approval of their actions. The entity authorized to approve management board actions is determined exclusively by the charter—this may be any person or body, including the management board itself.
J. Beneficiaries Entitled to Participate in the Beneficiary Assembly
The beneficiary assembly (zgromadzenie beneficjentów) does not constitute a “general meeting” of all beneficiaries. Participation rights vest only in those upon whom the charter confers them. Conditioning composition upon circumstances (e.g., the period during the founder’s lifetime versus thereafter) or upon beneficiary characteristics (e.g., attainment of majority or a specified age) is permissible.
Research indicates that founders most frequently reserve exclusive participation rights to themselves during their lifetimes, expanding the circle of entitled persons only for the period following death.
K. Rules Governing Charter Amendment
The legislature has not introduced default rules—the founder must independently determine who may modify the charter and pursuant to what procedure. This authority may be vested in the founder personally, in foundation organs (most commonly the beneficiary assembly), or even in third parties.
Introduction of differentiated requirements for distinct categories of amendments is permissible—some may require unanimity, others simple majority. Restriction of the possibility of amending certain provisions also appears permissible, though the question of complete prohibition of charter amendment remains contested.
Excessive rigidity may prove hazardous in multigenerational perspective—evolving legal, economic, or familial circumstances may necessitate adaptation of operational rules.
L. Disposition of Assets Upon Dissolution
The charter determines who shall receive assets following liquidation. By default, assets pass to the founder (during the founder’s lifetime) or to beneficiaries designated in the charter. Provisions governing the priority of creditor satisfaction and the prohibition on distributions prior to debt discharge are mandatory in character and not subject to charter modification.
III. Optional Provisions
The charter may regulate additional matters. The statute exemplifies rules governing inter-organ cooperation, specific dissolution circumstances, investment guidelines, and the possibility of establishing branch units.
Investment guidelines permit the founder to direct asset management policy—they may specify preferred asset classes, exposure limits, and diversification principles. Violation of guidelines generates internal liability but does not affect the validity of transactions with third parties.
Introduction of an arbitration clause for disputes arising from relationships connected with the foundation is likewise permissible. This possibility is contemplated by the amended Article 1163 § 3 of the Code of Civil Procedure.
IV. Constitutive Effect of Registration of Amendments
Charter amendments become effective only upon entry in the family foundation register. This applies to both external and internal relations. Until registration, the prior version of the charter governs, even if an amending resolution has already been adopted and notarially documented.
Applications for registration of amendments must be filed without delay, no later than seven days from the event warranting registration. A consolidated text incorporating the amendments must accompany the application.
V. Practical Guidance
Several principles merit observance in charter preparation.
First, the charter should be tailored to the specific family. Templates published in legal information systems may serve as points of departure but not as ready-made solutions. The particular characteristics of the assets, family structure, and succession objectives all demand individualized treatment.
Second, an appropriate equilibrium between flexibility and stability should be maintained. Excessively rigid rules may preclude adaptation to evolving circumstances. Excessively permissive rules may facilitate deviation from the founder’s intentions.
Third, charter provisions should maintain internal coherence. Registration practice reveals difficulties arising from multiple, inconsistent regulation of identical matters in different portions of the document.
Fourth, multi-scenario provisions and salvatory clauses merit consideration. The multigenerational perspective requires anticipation of various contingencies.
Fifth, given the still-developing registration practice, a staged approach warrants consideration when introducing non-standard arrangements—initial registration with a “conservative” charter, followed by modification toward the ultimate configuration.
The notary’s role is confined to ensuring compliance with formal requirements and mandatory statutory provisions. Substantive configuration of content—selection of arrangements appropriate to succession, tax, and business objectives—requires collaboration with specialized advisors.
Conclusion
The charter of a Polish family foundation represents far more than a mere formality attendant upon establishment. It constitutes the comprehensive legal framework within which the foundation will operate, potentially across multiple generations. The significant latitude afforded to founders in configuring charter provisions presents both opportunity and responsibility. Careful, forward-looking drafting that balances present needs against future contingencies, stability against adaptability, and specificity against flexibility will prove essential to the successful deployment of this relatively new instrument in Polish private law. As registration and judicial practice continues to develop, the boundaries of permissible charter provisions will become clearer, but the fundamental challenge of crafting an instrument adequate to the complexities of multigenerational wealth preservation will remain.
