Webinar: Cómo modificar los estatutos de mi fundación o corporación

Webinar on Modifying Statutes in Foundations and Corporations

Introduction to the Webinar

• The webinar welcomes participants and introduces the topic of modifying statutes in foundations or corporations, emphasizing its importance as statutes serve as a framework for organizational action.

• It highlights that organizations may feel limited by their current statutes, necessitating changes when expanding their objectives or altering governance structures.

Key Speakers and Structure of the Webinar

• Introduces Manuel Cerdán, a lawyer from the Ministry of Justice, and María Luisa from Peralta & Abogados as key speakers.

• The session is structured into three parts: María Luisa will discuss steps for changing statutes, followed by Manuel's insights on required documents, concluding with practical tips on drafting statutes.

Steps for Reforming Statutes

• María Luisa outlines that reforming statutes requires an assembly meeting where two-thirds approval is needed for corporations; for foundations, it must be approved by the board.

• Emphasizes that reforms must be formalized in writing and signed before a notary or designated municipal official.

Legal Requirements and Procedures

• Discusses legal requirements stating that after agreement on reforms, documentation must be submitted to the municipality where the organization is registered.

• Municipalities have 30 days to review submissions; foundations require an additional report from the Ministry of Justice.

Importance of Compliance with Regulations

• Highlights that compliance with regulations is crucial to avoid rejection during statute modification processes.

• Manuel Cerdán will provide further details about necessary documents and considerations to ensure successful approval of statute changes.

Clarification on Notarial Presence

Understanding the Role of Public Notaries and Legal Procedures

The Importance of In-Person Sessions

• The process requires a physical presence during public writing sessions, involving either a notary, municipal official, or civil registry officer.

• In some municipalities, all members must attend in person to sign documents and conduct the session directly at the municipality.

Insights from Manuel on Reform Review

• Manuel discusses his role in reviewing reforms related to foundations and other legal matters, emphasizing transparency in their processes.

• He mentions an increase in workload due to ongoing examinations of statutory reforms for foundations.

Focus on Ministerial Competence

• The discussion centers around the competencies of the Minister of Justice regarding foundation reforms and report issuance as per legal codes.

• It is clarified that while corporate reform procedures do not involve the Ministry of Justice, foundation reforms do require ministerial oversight.

Key Aspects of Legal Reports

• Four fundamental aspects are highlighted regarding reports issued under legal codes concerning foundations:

• Only applicable to foundations; corporations are excluded.

• Reports do not equate to immediate approval or enactment of reforms; further steps are necessary for validity.

Distinction Between Updates and Reforms

• A clear distinction is made between updating board compositions versus formal statutory amendments.

• Updating board members does not require ministerial involvement but must be reported directly to the civil registry.

Final Considerations on Report Issuance

• Emphasis is placed on understanding that changes affecting administration and direction must be properly documented through appropriate channels.

Directorio y Procedimientos de Reforma

Concepto de Directorio

• En diversas organizaciones, el término "directorio" puede variar; se le conoce también como consejo directivo o consejo de administración. Este órgano es fundamental para la inversión y dirección general.

Solicitud de Informe

• Si se presenta una solicitud de informe que solo modifica aspectos no relacionados con el objeto o el órgano administrativo, esta será devuelta sin admisión.

• La falta de constancia formal del ministerio de justicia no impide que el registro civil acepte cambios menores como modificaciones en nombre o domicilio.

Desafíos en la Uniformidad Municipal

• Existen más de 300 municipalidades, lo que dificulta establecer un criterio uniforme en todos los procedimientos administrativos.

• A pesar de que algunos municipios exigen constancias formales, la ley establece que no son necesarias para ciertos trámites.

Proceso Práctico en Secretarías Municipales

• Al acudir a una secretaría municipal para reformar un nombre, aunque la ley no requiera informe, se debe explicar por qué se devuelven antecedentes si estos son inadecuados.

• Desde 2015, las fundaciones deben presentar sus reformas a través de las secretarías municipales antes del examen legal por parte del ministerio.

Dictamen Contraloría General

• Un dictamen confuso emitido por la contraloría general establece que la obligación principal de requerir informes recae sobre las fundaciones y no sobre las secretarías municipales.

• Actualmente, ambas vías (solicitar informe primero o presentar documentos directamente) son aceptadas sin preferencia entre ellas.

Documentación Necesaria para Reformas

• Para ingresar solicitudes de reforma, es crucial incluir tres documentos:

• Acta extraordinaria del directorio con acuerdos específicos.

• Certificado de vigencia para evitar confusiones con entidades similares.

• Presencia del ministro de fe durante el acuerdo formal.

Statutory Requirements and Best Practices for Foundations

Importance of Accurate Documentation

• The current statute requires an update from civil registries regarding the foundational documents to advance the examination process.

• A standard cover letter must accompany all submitted documents, including precise contact details such as phone numbers, emails, and postal addresses.

• Emphasizing the importance of accurate contact information to ensure effective communication and return of original reports.

Key Legal Considerations in Foundation Management

Judicial Representation

• Judicial representation can only be delegated by the board president for specific matters; total delegation is not permitted by law.

Duration of Director Mandate

• Directors cannot serve beyond a five-year term without reevaluation; indefinite terms are legally objectionable.

Director Remuneration Guidelines

• Directors may only receive remuneration for services outside their statutory role; direct payment for being a director is prohibited.

• Reimbursement for expenses incurred during service is allowed but should not be confused with remuneration.

Governance Structure and Decision-Making

Quorum Requirements

• The law mandates an absolute majority to convene meetings and a majority of those present to make decisions; lower quorums are subject to objection.

Founder Status Clarification

• The title of founder cannot be replaced or newly assigned; it is a permanent status acquired at a specific time.

Transformation Mechanisms in Foundations

Legal Limitations on Transformation

Legislative Procedures and Reports

Transformation of Entities

• The speaker emphasizes that the legislator has established procedures for transforming entities through specific laws, citing Law 20.1980 as an example that allowed professional institutes and technical training centers to become non-profit entities.

• It is noted that no such transformation procedure can be inferred from the Civil Code, indicating a lack of explicit provisions for this in civil law.

Importance of Harmonization in Drafting

• The speaker stresses the need for careful drafting when making modifications to ensure clarity on where new paragraphs are incorporated within legal texts, highlighting issues with previous reform projects.

• A favorable report leads to further action at the municipal secretary's office, where interested parties must present a supplementary act addressing any amendments suggested by the reviewing body.

Legal Examination Process

• The speaker outlines their approach to issuing reports, focusing on fundamental aspects detected during legality examinations and aiming for concise communication.

• Clarification is provided regarding what constitutes a favorable or unfavorable report under the law, emphasizing that it should reflect whether modifications are beneficial or not.

Submission Processes and Municipalities' Roles

• Citizens can request reports by referencing Article 55.8 of the Civil Code, which helps clarify their requirements when approaching municipal authorities.

• A question arises about inconsistencies among municipalities regarding who can request these reports; some require prior approval from the Ministry of Justice before accepting submissions.

Timelines and Administrative Challenges

• Concerns are raised about how timelines work when municipalities demand prior ministry approval before processing requests, particularly regarding a 30-day deadline post-reform act submission.

• The speaker interprets that this 30-day period is suspended while awaiting necessary documentation from public bodies to avoid penalizing citizens due to administrative delays.

Variability in Municipal Criteria

• There are challenges in gathering all required documents within tight deadlines due to potential access issues with public records systems like civil registries.

Understanding the Legal Framework for Municipal Procedures

The Role of Interpretations in Municipal Procedures

• The speaker expresses regret about needing to create interpretations to function within legal frameworks, noting that not all interpretations can guide public bodies involved in procedures.

• It is acknowledged that municipalities may impose their own timelines (e.g., 30-day deadlines), which complicates the process and limits the authority of other entities to dictate municipal actions.

Importance of Direct Communication with Municipalities

• A recommendation is made for individuals to directly inquire with their respective municipalities regarding criteria and timelines to avoid issues during reforms.

• The speaker emphasizes the necessity of understanding behind-the-scenes processes, as many are unaware until they receive feedback from municipalities on their submissions.

Monitoring and Following Up on Reforms

• Continuous monitoring is crucial; individuals must ensure they follow up on their reform processes to avoid missing important updates or making errors.

• The discussion highlights a sequence of necessary actions for statutory reforms, including holding meetings before a notary public.

Submission Process and Requirements

• After approval in a meeting, documents must be submitted to the municipality along with existing statutes; this includes obtaining reports from relevant ministries.

• Municipalities will issue final approvals based on these submissions but may also request additional information or clarifications.

Final Steps in Reform Registration

• Once approved, documentation is sent to the civil registry where it becomes official; however, some changes may not be immediately reflected in certificates issued by the registry.

• It's essential for organizations to stay informed about what modifications are recorded by the civil registry and how they communicate these changes back to municipalities.

Ensuring Completion of Reform Processes

• Organizations should actively confirm with municipalities whether their reforms have been registered successfully at the civil registry.

Reforming Statutes: Key Considerations

Importance of Precise Language in Reforms

• The assembly agreed to reform Article 3, emphasizing the need for precision in language to avoid confusion during future references.

• There are two modalities for reforms: specific articles can be amended, or a new consolidated text can be approved that incorporates all changes.

Finalizing and Approving New Texts

• After completing the reform process, organizations must ensure that the new document reflects all changes accurately before submission.

• For legal purposes, the final consolidated text must be approved by either the assembly or the current director to maintain its validity.

Documentation and Legal Formalities

• Official documents must reflect approved statutes and their amendments; informal changes do not hold legal weight.

• It is crucial for organizations to present officially sanctioned documents when required by external entities.

Simplifying Statutory Requirements

• Organizations should aim for a single, clear text of statutes for practical reasons and ease of understanding.

• When specifying amendments, it’s essential to include a consolidated version as part of foundational documents.

Recommendations for Effective Statute Management

• Organizations should consider simplifying their statutes to avoid unnecessary complexities that hinder operations.

• It's advisable not to impose more stringent requirements than what is legally necessary or practically achievable.

Practical Considerations in Governance

• Regular meetings outlined in statutes should reflect actual capabilities; unrealistic expectations can lead to operational challenges.

• Modernize citation methods within statutes; reliance on outdated practices like newspaper announcements may not be feasible today.

Defining Organizational Objectives

• Clearly defining an organization’s objectives within its statutes is critical as it influences potential funding sources and compliance with donation laws.

Understanding Organizational Statutes and Reforms

Importance of Incorporating Specific Mentions in Statutes

• Organizations are encouraged to not only execute actions but also include specific mentions in their statutes, which will guide daily operations.

• It is crucial for organizations to have a broad object in their statutes that allows flexibility in their activities rather than being overly restrictive.

Recommendations for Statutory Revisions

• When revising statutes, organizations should ensure they allow for a range of actions beyond the initially stated purpose, facilitating better management and adaptability.

• A thorough understanding of existing statutes is essential before making reforms; incorporating new ideas can enhance organizational effectiveness without losing foundational objectives.

Distinction Between Reforming and Constituting New Entities

• If an organization wishes to pursue activities significantly different from its original purpose, it may need to establish a new entity instead of merely reforming its statute.

• The context and essence of the foundational object must be preserved during any modifications; clarity on what constitutes an expansion or restriction is vital.

Timeline for Statutory Reforms

• The process for obtaining favorable reports on statutory reforms typically takes about three to four weeks, depending on the complexity of changes made.

• Simpler modifications can expedite the review process, while extensive revisions requiring a consolidated text may prolong it.

Municipal and Civil Registration Processes

• Municipalities have a legal timeframe of 30 days to respond to statutory reform submissions; delays may occur if observations are raised.

Understanding Changes in Non-Profit Governance

Procedures for Changing Board Members

• Discussion on the necessity of internal procedures when changing the treasurer of a non-profit organization, emphasizing that such changes do not require statutory reform.

• Clarification that altering specific positions within the board does not necessitate a reform of statutes unless there is an expansion in the number of board members.

• Importance of holding a board meeting or assembly to agree on modifications regarding board member changes as per established statutes.

Legal Requirements for Statutory Changes

• The need to legalize copies of documents through notarization and submit them to civil registry with specific forms for updating board member information.

• Emphasis on understanding organizational statutes thoroughly before proceeding with any changes, ensuring compliance with internal regulations.

Nature and Classification of NGOs

• Explanation about NGOs being categorized differently across countries, noting that "NGO" is not a legally recognized term but rather a concept adopted from international frameworks.

• Historical context provided on how NGOs in Chile are typically organized as corporations, aligning their statutes closely with those of associations.

Assessing NGO Status and Requirements

• To determine if an NGO requires statutory reform, one must examine its founding documents and objectives to ascertain its legal structure.

• Acknowledgment that historically, many organizations in Chile have operated as corporations; thus, understanding their foundational acts is crucial for clarity.

Impact of Name Changes on Organizational Continuity

• Assurance that changing an organization's name does not affect its historical continuity or registration number, particularly for entities established prior to Law 20.500.

• Confirmation that even multiple name changes will not impact the original registration number associated with older entities.

Follow-Up Procedures After Statutory Reforms

• Insight into the lack of proactive notifications from municipal secretariats regarding approval status for statutory reforms; organizations must actively follow up.

Discussion on Founder's Role in Nonprofit Governance

Importance of Questions and Engagement

• The speaker acknowledges the quality of questions from attendees, indicating a willingness to extend the discussion by ten minutes for further inquiries.

• A question arises regarding whether a founder can remain indefinitely on the board of directors, prompting a deeper exploration of legal frameworks.

Legal Framework Governing Board Membership

• The civil code limits board mandates to five years but does not explicitly prohibit founders from serving longer if they choose.

• The speaker emphasizes that while there is no prohibition against a founder's extended service, it should be evaluated on a case-by-case basis.

Structuring Board Membership in Statutes

• It is suggested that statutes can define how board members are appointed, allowing founders to ensure their continued influence by naming at least one member.

• Founders can establish provisions in statutes to maintain their role as president or ensure their ongoing involvement through strategic appointments.

Balancing Founder Influence and Organizational Integrity

• While founders may want significant control over their organizations, it's crucial to balance this with legal requirements for periodic review of board composition.

• The speaker notes that founders often have emotional ties to their foundations, which can lead them to seek active participation beyond legal obligations.

Concerns Over Confusion of Legal Entities

• There are concerns about potential confusion between the founder's personal identity and that of the foundation; maintaining distinct identities is essential for legal clarity.

• Historical practices discouraged excessive founder control due to risks associated with merging personal and organizational identities.

Clarifying Succession and Founder Authority

• A question about succession arises: if a founder steps down, do they retain authority over appointing successors? This highlights the need for clear governance structures.

• The importance of reviewing organizational statutes is emphasized; these documents dictate roles and powers within the organization.

Statutory Provisions for Governance

Understanding Founder's Rights and Statutory Changes

Founder’s Authority and Statutory Provisions

• The founder's rights may not be explicitly stated in the statutes; if no express powers are granted, their absence upon the founder's departure has no significant impact.

• If specific powers exist for the founder, a statutory reform is necessary to formalize these powers within the organization’s governing documents.

Reporting Requirements to Authorities

• Corporations typically do not need to submit reports to the Ministry of Justice, while foundations do. Reports are primarily reviewed during changes in leadership or organizational purpose.

• It is crucial to identify which municipal secretary will oversee any proposed reforms, ensuring compliance with local regulations.

Procedures for Name Change and Documentation

• When changing an organization's name, it is essential to obtain formal confirmation from the Ministry that they do not require a report on such changes.

• The law stipulates that only certain changes (related to purpose and administration) require formal reporting; other aspects fall under municipal authority.

Addressing Administrative Delays

• In cases where municipalities indicate deadlines have passed, it is advisable to explore administrative appeal processes against decisions made by municipal secretaries.

• Sometimes pursuing complaints can lead to more delays than simply reinitiating meetings with boards or assemblies.

Cost-Benefit Analysis of Administrative Actions

• A practical approach often involves reevaluating whether pursuing administrative complaints is worth the time compared to directly addressing issues through board meetings.

• Understanding different types of deadlines (administrative vs. judicial), especially post-law amendments, helps navigate procedural requirements effectively.

Final Considerations on Compliance and Communication

• Engaging respectfully with authorities can sometimes prevent unnecessary legal actions that should not occur according to established laws.

Discussion on Delays and Communication Issues

Addressing Delays in Communication

• The speaker highlights a delay in communication from the regional direction, defending Manuel's position regarding these issues.

• An example is provided where a report has been pending since February of the previous year due to internal miscommunication at the tax service.

• Emphasis is placed on the importance of following up with various organizations to ensure processes are moving forward, as human errors can occur.

Importance of Active Engagement

• The speaker encourages participants to stay engaged through available communication channels to monitor their processes effectively.

• Acknowledgment of the need for contact information from participants to clarify any outstanding issues with relevant authorities.

Conclusion and Feedback Invitation