The Bahamian Private Foundation -
A civil law concept in a common law world

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Historically, a foundation is a creature of civil law jurisdictions, where it is a distinct and separate legal entity.

The legislation

In 2004, the Foundations Act (the "Act") introduced into The Bahamas, a common law jurisdiction, the concept of the "private foundation". The Act was amended in 2005 and further amended in 2007.

The following is an overview of the Act and the Bahamian foundation.

The foundation defined

The Act defines "foundation" as "an entity established by a foundation charter and in accordance with this Act; and which is registered ". A foundation which satisfies the definition of a foundation under the Act is a legal entity, having a separate personality, resident and domiciled in The Bahamas and which can sue and be sued in its own name.

The formation document

A foundation may be established by a will or a foundation charter which will be the formation document of the foundation and is required to contain certain prescribed details, inclusive of, inter alia:

(i) the name of the foundation with the word "foundation" (or such foreign deviation of this word as permitted at the discretion of the Registrar of Foundations) as the last word in its name;
(ii) details of the founder, that is, the name and address of the founder and the address in The Bahamas for service of documents on the founder;
(iii) the purpose(s) or object(s) of the foundation;
(iv) the name and address in The Bahamas of the secretary or foundation agent of the foundation and the address of the foundation's registered office;
(v) the value of the initial assets of the foundation.

In addition to the formation documents discussed above, a foundation may have articles if this is desired.

The charter is not required to be filed at any public registry or public office in The Bahamas. The formal establishment of the foundation shall not be completed until the foundation has been properly registered with the Registrar of Foundations in The Bahamas.

Registration of the foundation

Registration of the foundation takes place when a statement signed either by (i) the secretary (ii) foundation agent or (iii) the attorney engaged in the formation of the foundation containing the following particulars is filed (along with the other items discussed below) with the Registrar of Foundations in The Bahamas:

(a) the name of the foundation;
(b) the date of the charter and the date of any amendment made prior to the submission of the statement to the Registrar;
(c) the foundation's purpose or purposes and objects;
(d) the date of the foundation's articles (if any) and the date of any amendment made prior to the submission of the statement to the Registrar;
(e) the name and address of the secretary and/or foundation agent;
(f) the address of the foundation's registered office;
(g) the period for which the foundation is established;
(g) the value of the foundation's initial assets and a statement that the foundation may not have assets with a total value of less than $10,000; and
(h) such other particulars as the secretary or the attorney at law shall in his absolute discretion wish to include in the statement.

In addition to the statement referred to above, a list containing the names and addresses of the foundation's first officers, a statutory declaration by the secretary or foundation agent or attorney at law engaged in the formation of the foundation of compliance with all relevant requirements of the Act, and the prescribed fee are required to accompany the said statement.

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