Power of Attorney (POA)

The aim of the program is to educate SMSF members in their responsibilities as Trustees. The program has been designed around the SMSF Trustee Declaration, which all new Trustees have to sign. After completing the program, trustees should be able to sign the SMSF Trustee Declaration form, confident that they have the competencies expected of them as Trustees.

After completing the program, SMSF trustees will be able to understand:

• their roles and responsibilities as SMSF trustee
• the investment restrictions imposed on an SMSF trustee
• contribution rules
• benefit payment rules
• SMSF administration.

The knowledge gained from this program, combined with the information on the Superannuation Warehouse website, will enable Trustees to manage their Fund within the requirements of the ATO.

If you are a client of ours and you elect to implement a POA, we will send you the above mentioned documents to be signed and we will update the appointment of the POA with ASIC and the Tax Office on your behalf.

We applied for a Private Ruling on an SMSF where the Members moving overseas appointed power of attorneys before leaving Australia. The Private Ruling resulted in a positive outcome and the Fund continued to remain compliant as long as the Members meet the three residency tests. Below is the sample of the Private Ruling:

An Enduring Power of Attorney (EPA) is an important legal document that ensures if you loose your mental capacity through injury or the onset of a medical condition then you have someone in a position of trust to protect your assets and to take care of your affairs.

An EPA is especially important if you are a Member of an SMSF. Generally, if you are a Member of an SMSF, you must also be a Trustee (or a Director of a Corporate Trustee). Where a Trustee loses mental capacity, then the position of the Trustee may become vacant. As a result, the SMSF may risk becoming non-compliant by the ATO unless the Trustee either rolls over the incapacitated Member’s benefit to a retail fund or appoint for a new Trustee. Rolling over the Member’s balance into a retail superfund can have tax consequences (such as CGT and Stamp Duty) and can also lead to practical difficulties – for instance, the assets held within the SMSF may need to be sold and liquefied in order to transfer the benefits to a retail fund.

However, if the Member has appointed an Enduring Power of Attorney, a person holding an EPA is authorised to act in the Member’s place as a Trustee. As long as the replacement Trustee is appointed within 6 months of the incapacitated member ceasing to be a Trustee, the Member balance can remain within the SMSF.

For general information on the rules over SMSF’s please visit the ATO guidance page.