The Foundations Law provides that every foundation must have a council and one member of the council must be a “qualified person”. ‘Qualified person’ is defined in the Foundations Law as a person registered under the Financial Services (Jersey) Law 1998 (the “Financial Services Law”) to carry on trust company business that permits a person to act as company or partnership formation agent, or as a member of a council of a foundation. The qualified person has obligations under the Financial Services Law, the Companies Law and the Foundations Law.
The Jersey Financial Services Law
The qualified person has obligations under the Financial Services Law as a person regulated in Jersey by the Jersey Financial Services Commission (the “JFSC”).
The Foundations Law amends Article 2 of the Financial Services Law to provide that “acting as or fulfilling the function of or arranging for another person to act as or fulfil the function of a member of the council of a foundation” is added to Article 2(4) of the Financial Services Law as one of the services, which, when provided with company administration services, or trustee or fiduciary services is considered to be carrying on a trust company business for which a person must be registered under the Financial Services Law.
Consequently, the JFSC have added a new class of trust company business, Class OA relating to acting as a member of a council, to the classes of trust company business for which a person must apply to be registered before it can provide such services.
Therfore any person hoping to act as a qualified member of a council of a foundation must apply to the JFSC to conduct such ‘Class OA’ business and will be regulated in the conduct of such business by the JFSC under the Financial Services Law.
Conclusion
The duties of the qualified person under the Foundations Law are all statutory and are close to the duties of directors of Jersey companies, and trustees of Jersey trusts.
In addition, the qualified member has its own obligations under the Financial Services Law which are no different to the existing obligations of any person already regulated by the JFSC. A qualified person applying for continuance under the Regulations will require to take advice in other jurisdictions before giving any confirmations required by the Regulations.
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