Five Documents Needed By Nonprofits in Florida
Starting and running a nonprofit in Florida can be document-intensive. From the beginning, documents are required that define the scope and mission of the organization as well as the rules by which the organization is run.
Later, once regular operations are underway, other documents could be created that govern the non-profit’s relationship with its beneficiaries, volunteers and fundraisers.
At each step in the process of creating and running a non-profit, it is essential that experienced legal counsel is consulted for drafting and review of any required documentation. Although generic one-size-fits-all templates may be available online for many of the documents suggested in this article, each charity is different and thus the document content requirements of each organization may vary. Therefore, the ideal situation is to have an experienced business lawyer draft and review these documents prior to use in the business.
Here is a list and description of five of the most common documents required by non-profit organizations in the State of Florida. Note that if you are running a charity or other non-profit the actual documentation required by your organization may be different. Consult a Florida business attorney with non-profit experience to determine which documentation is right for you.
1. Articles of Incorporation
Nonprofit organizations get their legal status when articles of incorporation are submitted to the Secretary of State of Florida via its business portal at sunbiz.org,
These articles include the name of the non-profit, the registered agent, its official address, and other information concerning its membership structure. There are a number of organization specific clauses that the articles of incorporation might contain such as the particular reason for the organization’s tax exempt status and what would happen to the nonprofit’s assets if dissolution were to take place.
One of the most important components to enter correctly on any organization’s article of incorporation is the name. Before a name is added, it is recommended that a thorough search of similar names in the state is conducted. The reason why this is so important is that if the name of the new organization is already being used by another entity in the State of Florida, the Secretary of State will reject the name and require the articles of incorporation to be resubmitted with a new and unique name. In addition to the name, the articles of incorporation will include the address of the nonprofit, typically the organization’s primary location where its administrative or field operations will take place. At least at the beginning, most non-profits will start out with one address in their articles of incorporation.
The next three items that the articles of incorporation need to include are the name of the registered agent of the organization, the purpose of the organization and the length of time (which in Florida can be ‘perpetual’). Determining these items, especially who the registered agent will be is very important. The registered agent will be the official recipient and correspondent of the organization and will have a personal responsibility to respond to and file paperwork with the Florida Secretary of State. The advantage of using a lawyer to draft the articles of incorporation is that in many cases that same law firm can act as the organization’s registered agent.
Importantly, Florida non-profit organizations are governed by statutes which outline the minimum number of directors a non-profit may have, who those directors can be. A decision will also need to be made concerning the number of shares that the non-profit organization will have and to whom those shares will be issued. An experienced law firm can advise on these complex issues in a way that protects the best interests of the non-profit and its stakeholders.
2. Corporate Bylaws
The corporate bylaws of a nonprofit, in addition to the articles of incorporation, provide a set of standard operating procedures for the organization. They can be referred to at any time for information on the nonprofit’s rules and regulations. For example, a bylaw may state how long a person can serve as a member of the board. Other bylaws determine how many members are required for quorum, when and perhaps where meetings are to be held, how directors and officers are elected/appointed and other matters related to corporate governance.
3. Written Document Retention Policy
Florida has Sunshine State Laws, laws which require that information filed with the state government remain public for all to access. As such, it is highly recommended that every non-profit organization adopts a well-drafted document retention policy. Such a policy can ensure that the organization’s functionaries (whether staff or volunteers) adhere to strict guidelines regarding the retention and destruction of documents during the regular course of business.
A good document retention policy will be in compliance with state and federal requirements that nonprofits must retain certain documents for a certain minimum number of years. Because this document also governs when documents should be destroyed it should be in compliance with HIPAA and other data-related laws that may govern the types of information that the non-profit collects on beneficiaries, students, employees, donors and other individuals.
To maintain good governance it is important that the Document Retention Policy comply with Florida statute §496.418 on records for charitable organizations as well as Florida statute §617.1601 regarding corporate records.
“…it is highly recommended that every non-profit organization adopt a well-drafted document retention policy.”
4. Fundraiser Commission Agreements
Once a charitable organization or other non-profit is in operation, it may engage a professional fundraiser to secure major gifts (large donations) for an agreed commission. The agreement in place with this individual ideally will cover all legal matters regarding their relationship with the organization, what they are expected to do and how much they will be compensated for their success. A fundraising commission agreement should be a document that both protects the nonprofit and provides a welcoming incentive to the professional fundraiser. A well-drafted fundraiser commission agreement will include the following components:
- The identity of the fundraiser and the organization
- A detailed description of the services to be rendered to the organization
- Coverage of matters related to compensation, including commissions, salaries and reimbursement of certain expenses
- Confidentiality and non-compete clauses
5. Participation Waivers
Any non-profit that runs events or activities involving potentially risky exposure to injury should have volunteers and beneficiaries sign a participation waiver.
Participation waivers, sometimes also called consent forms, are powerful legally-binding documents that protect organizations against legal claims of negligence. Participants are asked to sign these documents for themselves or minors in their care prior to participating in risky activities. Waiver language states that participants or their legal guardians fully understand the risks involved, and agree not to bring lawsuits in case of damages or injury. Courts frequently dismiss cases due to a waiver having been signed prior to the event on an injury. Many waivers also avoid courts by stating that specific arbitration venues should be used in lieu of the courts. By determining jurisdiction, waiver forms reduce the cost of dispute resolution significantly.
If you are a charity or non-profit with “field-operations” that expose volunteers or beneficiaries to the following activities, it is highly recommended that you seek the services of an experienced attorney:
- Adventure activities
- Exercise sessions or sports performance
- Filming and photography sessions
- Intensely emotional experiences (haunted houses, therapy sessions etc.)
- School field trips
- Spas and massages
- Transportation to or from events
South Florida Law
South Florida Law, PLLC is your legal partner, prepared to protect the best interest of your non-profit entity. We provide a variety of resources and solutions to equip your non-profit with the protections necessary to operate freely. South Florida Law also assists in formation and organization of your nonprofit entity, handling contractor matters, reviewing agreements and representing your organization in payment disputes. Are you running or planning to run a nonprofit entity in the State of Florida? If so, call us on (954) 900-8885 or use our contact form for a free consultation.