Appointed private foundation board member refuses office: replacement appointment and ability to act

The appointment of a person and the assumption of office are separate questions. An appointment document alone does not safely establish that the person intends to perform the office where the person has expressly refused it. The wording of the declaration, its receipt by the correct recipient, the sequence of events and the foundation deed must be read together.

The general ABGB rules on legal declarations and the formation of agreements, in particular sections 861 et seq ABGB, provide a framework for assessing the declaration, receipt and interpretation. They do not replace the special rules of the Private Foundations Act. Whether acceptance was express, implied or effective at all should therefore not be inferred from a commercial register entry alone.

In practice, preserve the refusal with its date, sender, recipient and complete wording. A telephone message often leaves open whether the person is finally refusing, needs time to consider the office or is naming conditions for acceptance.

Section 27(1) PSG addresses the absence of a member required by law or by the foundation deed. If a required board member is missing after an effective refusal, the court may appoint that member on application or on its own initiative. The application should show the vacancy and the specific composition gap in a verifiable way.

The review starts with section 15 PSG. The foundation board must have at least three members, and two members must have their habitual residence in an EU Member State or an EEA contracting state. The statutory exclusions for beneficiaries, certain relatives, legal persons and other situations listed in section 15 PSG must also be checked.

A replacement appointment therefore cannot rest only on the availability of a preferred candidate. The file should contain the foundation deed, supplementary deeds, current commercial register extract, appointment document, refusal and the information needed to check the candidate against the statutory requirements.

Section 17(1) PSG assigns management and representation of the private foundation, as well as responsibility for fulfilling its purpose, to the foundation board. Under section 17(3) PSG, all members are generally authorised to make declarations and sign jointly unless the foundation deed provides otherwise. The concrete authority therefore needs to be checked for each urgent measure.

A missing member does not automatically make every act of the remaining members ineffective. At the same time, general urgency does not create new authority. The foundation deed, registered representation rule, number of remaining members and the specific declaration or signature determine the position.

Payments, deadlines, ongoing contract negotiations, bank mandates and digital access require particular care. Prepare a short list of matters that cannot wait. For each item record the person acting, the basis of authority and the documents needed to support the measure.

A sound application describes the facts in chronological order. It identifies the previous board, appointment document, refusal and the point at which the composition gap arose. A statement that a member is simply “unavailable” usually leaves the decisive issue open.

The file should include the current foundation deed and supplementary deeds, commercial register extract, appointment resolutions, the complete refusal with proof of receipt and a list of ongoing measures. For the proposed replacement, provide the information that makes personal eligibility and the absence of statutory exclusions verifiable.

Urgency should be explained through concrete consequences, such as an approaching deadline, a required contractual declaration or blocked administration. The reasoning should remain tied to verifiable facts and keep court appointment separate from any liability or damages claim.

After a court appointment, establish whether the appointed person accepts the office and from when the function is performed. Keep the declaration with its date and receipt. If the person refuses again, section 27(1) PSG must be reviewed again if the refusal leaves a required member missing.

The appointment must be filed with the commercial register without delay. Section 15(5) PSG requires evidence of the appointment or change in publicly certified form and a publicly certified specimen signature. The register filing does not replace the internal handover. Resolutions, mandates, contact details, bank documents and digital access need a traceable transfer.

The handover file should also record open resolutions, deadlines, contracts, audit reports and potential conflicts. Our article on resignation and handover explains the questions that usually need separate review when a board changes. A founder’s death can affect personal founder rights under different rules, as shown in the article on founder death, governing bodies and amendments.