Register For Our Mailing List

Register to receive our free weekly newsletter including editorials.

Home / 374

Every SMSF trustee should have an Enduring Power of Attorney

If you’re an SMSF trustee, there are several vital things to consider when it comes to your estate and succession planning.

COVID-19 shows need to prepare

Your will enables assets to be distributed in accordance with your wishes when you die, and a binding death benefit nomination will direct your super and any insurance benefits to your chosen beneficiary.

However, many people are not prepared for what happens if a trustee is incapacitated and not able to act either on a temporary or permanent basis.

COVID-19 and the events of 2020 are an indication of why now, more than ever, SMSF trustees need to be prepared for the ‘unexpected’ by having an Enduring Power of Attorney (EPOA) in place.

An Enduring Power of Attorney is a legal agreement that enables an individual to appoint another person or people to make financial, personal, medical or property decisions on their behalf in the event that the individual is unable to act. This appointment can be either on a temporary or permanent basis depending on the reason for the appointment.

Importantly, superannuation law allows an EPOA to act in the place of the member without causing the fund to cease to be an SMSF.

Different to a Power of Attorney

Many people believe that if they have a Power of Attorney in place their SMSF is secure. However, what happens if mental capacity is lost? Unfortunately, in this circumstance the Power of Attorney ceases to operate which is why it is important to have an EPOA in place.

All members of an SMSF must be trustees, but to be a trustee of an SMSF an individual cannot be under any legal disability including mental incapacity. If a trustee becomes unable to act or loses capacity, they must be removed, and someone will need to be appointed either temporarily or permanently in the trustee’s place until the individual can act again on their own.

A person acting as an Enduring Power of Attorney will take on all responsibilities of being a trustee. They will make financial decisions on the members' behalf. This will include the acquisition and disposal of investments, transacting on the fund’s bank account and paying all expenses of the fund including pensions. They will also be responsible for the signing of financial statements, annual returns, and other mandatory compliance minutes required.

In other words, they will oversee the day-to-day running of the SMSF in much the same way the member themselves did.

As blended families are becoming more prevalent, having an EPOA can avoid unnecessary friction or certain unanticipated actions being taken.

Anyone can be appointed as an EPOA and more than one EPOA can be nominated to act jointly in making the decisions. It is also a good idea to appoint a substitute where possible should one of the EPOAs not be able to take on the responsibility of being a trustee.

If something adverse happens without an EPOA in place, there can be dire consequences. For example, if a member resides in NSW an application would need to be made by the next of kin to the NSW Civil and Administrative Tribunal to obtain an order to enable the SMSF assets to be dealt with.

If you have an SMSF, don’t leave your assets to chance and arrange not just a Power of Attorney, but an Enduring Power of Attorney sooner rather than later.

 

Karen Dezdjek is Director, Superannuation and Wealth at Prime Financial Group. This article is general information and does not consider the circumstances of any individual.

 

RELATED ARTICLES

Importance of updating your SMSF Trust Deed

Clime time: Asset allocation decisions for SMSFs

SMSF trustees who question their capacity and look for options

banner

Most viewed in recent weeks

Vale Graham Hand

It’s with heavy hearts that we announce Firstlinks’ co-founder and former Managing Editor, Graham Hand, has died aged 66. Graham was a legendary figure in the finance industry and here are three tributes to him.

Warren Buffett is preparing for a bear market. Should you?

Berkshire Hathaway’s third quarter earnings update reveals Buffett is selling stocks and building record cash reserves. Here’s a look at his track record in calling market tops and whether you should follow his lead and dial down risk.

What will be your legacy?

As we get older, many of us start to think about how we’ll be remembered by those left behind. This looks at why that may not be the best strategy to ensure that you live life well and leave loved ones in good stead.

It's the cost of government, stupid

Australia's bloated government sector is every bit as responsible for our economic worries as the cost of living crisis. Grand schemes like the 'Future Made in Australia' only look set to make it worse.

Welcome to Firstlinks Edition 584 with weekend update

A new report shows Australian fund managers performed better in the first half of the year, with most outperforming indices in local equities, small and mid-caps, and bonds. Their results are less impressive over longer periods.

  • 31 October 2024

A guide to valuing SMSF assets correctly

SMSF trustees are required to value all fund assets, including property, at market value when preparing the fund's financial statements each year. Here are some key tips to ensure that you get it right.

Latest Updates

Retirement

Is the Retirement Income Covenant really the right answer?

The world and Australia’s retirement landscape have changed a lot since 2020. If the RIC is to achieve its goals, a wider spread of responsibility and a rethink across all five pillars of retirement planning are needed.

Superannuation

Are mega super funds’ returns set to fall?

While the performance of the largest super funds has been admirable, they’ve become so big that it will make it difficult for them to outperform their benchmarks in future. It will be important for you to pick your fund wisely.

Superannuation

Australia’s shameful super gap

ASFA provides a key guide for how much you will need to live on in retirement. Unfortunately it has many deficiencies, and the averages don't tell the full story of the growing gender superannuation gap.

Shares

How will stocks fare with a smaller US government?

Less government involvement in the economy and markets is long overdue. But investors need to consider what a reduced government role may mean for the profitability of businesses that are unable to offset rising cost pressures.

Exchange traded products

Where is peak ETF?

The market share for Exchange Traded Funds and index trackers may increase past optimal levels and stay there for many years. There seems very little if anything that active managers can do to reverse that.

Insurance

Solvency risk with lifetime annuity providers

Any discussion on annuities needs to address the credit risk associated with relying on the solvency of a single insurer. Here's a guide on the regulation of annuities and the best ways to assess solvency risk. 

Planning

Can a crime invalidate a will?

A person's criminal record can impact whether they can benefit under a will or remain as an executor, trustee or testamentary guardian. A lot depends on the nature of the crime. 

Sponsors

Alliances

© 2024 Morningstar, Inc. All rights reserved.

Disclaimer
The data, research and opinions provided here are for information purposes; are not an offer to buy or sell a security; and are not warranted to be correct, complete or accurate. Morningstar, its affiliates, and third-party content providers are not responsible for any investment decisions, damages or losses resulting from, or related to, the data and analyses or their use. To the extent any content is general advice, it has been prepared for clients of Morningstar Australasia Pty Ltd (ABN: 95 090 665 544, AFSL: 240892), without reference to your financial objectives, situation or needs. For more information refer to our Financial Services Guide. You should consider the advice in light of these matters and if applicable, the relevant Product Disclosure Statement before making any decision to invest. Past performance does not necessarily indicate a financial product’s future performance. To obtain advice tailored to your situation, contact a professional financial adviser. Articles are current as at date of publication.
This website contains information and opinions provided by third parties. Inclusion of this information does not necessarily represent Morningstar’s positions, strategies or opinions and should not be considered an endorsement by Morningstar.