A foundation (stichting) is a legal entity in its own right, with its own assets and liabilities. The legal concept of the foundation was developed from capital being set aside for a special non-profit or charitable purpose and was originally used by religious and welfare groups. The foundation is still frequently used for religious and non-profit organizations. Distributions to incorporators or to those who constitute its bodies, are not allowed – save in case of a Private foundation – and its distributions are furthermore restricted by law to distributions with a charitable or social purpose.
The foregoing does not mean that the use of a common foundation is restricted to charitable purposes. It can be and is extensively used in structures in which the foundation is the legal owner of assets of which others hold the economic ownership.
The principal difference between a foundation and a corporation is that a foundation has neither members, nor shareholders, nor a capital divided into shares. The board of a foundation, which manages its affairs, is therefore not subject to the overall control of shareholders or members. The initial managing board is appointed at the moment of incorporation. Thereafter, vacancies are filled at the sole discretion of the board in office or by another person or body especially nominated for that purpose.
Formation of a foundation
A foundation is established by notarial deed executed before a civil law notary in St. Maarten. The articles of incorporation of a foundation must include the name of the foundation, including the word “foundation” or a translation thereof, its purpose, the first managing board and the manner how board members are appointed and dismissed, the seat of the foundation and the designation of the balance after liquidation in the event of dissolution of the foundation or the manner in which the designation shall be determined.
Assets of a foundation
Unlike a company, a foundation has no capital per se, since it has no shares or shareholders. The founder of a foundation can contribute to the foundation the initial assets at the time of establishment of the foundation or on any date afterwards.
Management of a foundation
A board (bestuur) consisting of one or more members, manages a foundation. The powers of the board are set out in the articles of association of the foundation.
A foundation may also have a supervisory board which supervises the board in accordance with the articles of association. The founder of a foundation and the members of the board and of the supervisory board cannot participate in the assets and/or profits of a foundation.