This article is more than 24 months old and is now archived. This article has not been updated to reflect any changes to the law.
clearlaw
An enduring power of attorney can help your SMSF stay compliant
The SIS Act sets out conditions a fund must satisfy to be an SMSF. A member who has an enduring power of attorney in place ensures:
- the fund can continue to satisfy the definition of an SMSF if they lose capacity; and
- they can choose their most appropriate replacement as trustee or a director of the trustee.
There are some points to note about the power of attorney:
- it must be in force before the member loses capacity;
- it must be current; and
- it must accord with relevant state or territory legislation.
The replacement process is not automatic. The incapacitated member must be removed as trustee and the legal personal representative appointed as trustee or director of the trustee, all in accordance with the relevant legislation and the governing rules of the entity (SMSF trust deed or company constitution).
The legislation provides for a 6 month period to get the fund in order. This means the replacement must be appointed within 6 months of the incapacity, unless the member regains capacity within that period and can resume their duties.
More information from the ATO
For more information, read Self Managed Superannuation Funds Ruling 2010/2.
More Cleardocs information on related topics
You can read earlier ClearLaw articles on a range of SMSF and estate planning topics.
Order Cleardocs estate planning packages
- Enduring Power of Attorney (Personal and/or Financial) VIC
- Enduring Power of Attorney (Medical) VIC
- Appointment of Enduring Guardian NSW
- Power of Attorney (Financial) NSW
- Advance Health Directive (Medical) NSW
- ClearWill Online
- ClearWill with Testamentary Trusts
Lawyer in Profile
Lawyer
+61 3 9258 3554
georgia.borg@maddocks.com.au
Qualifications: LLB, University of Sheffield, LLM(CL), University of British Columbia
Georgia is a member of Maddocks Commercial team and assists in a variety of commercial and corporate matters for private, public and not-for-profit clients.
Her expertise includes advising on general commercial law, wills and estates law, charities and not-for-profit law along with corporate law.
Read Our Latest Articles
Estate Planning
ATO's 5-Year Rule Clarification: What You Need to Know About GST on Residential Property Sales
Estate Planning
Contesting Wills - Late Partners Must Leave Adequate Provision For Surviving Spouses
customer support
legal advice
-
The legal information and commentary on this site is general only. Documents ordered through Cleardocs affect the user's legal rights and liabilities. To assess their suitability for the user, legal accounting and financial advice must be obtained.