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SMSF Trusteeship and Enduring Powers of Attorney

I have recently been approached by a client who is travelling overseas indefinitely. The client is a trustee of his own self-managed superannuation fund.

The client was concerned, that as he was travelling overseas the self-managed superannuation fund may lose its residency status and wanted to appoint another person to act in his place as the trustee.

An Enduring Power of Attorney is a useful tool to allow this to happen. It is however very important that the intricacies of the Superannuation Industry (Supervision) Act 1993 (“SISA”) are complied with.

Some of the important points to consider are as follows:

1. Only an Enduring Power of Attorney will satisfy the requirements of SISA. A General Power of Attorney will not be sufficient;

2. Enduring Powers of Attorney take different forms and have different requirements in each State and Territory. This also must be taken into account;

3. The Enduring Power of Attorney must include authority for the person appointed as the attorney to act in relation to the superannuation affairs;

4. If there is more than one attorney appointed, only one of the attorneys can be appointed as trustee;

5. The member must be removed as a trustee, or director of a trustee company. The attorney must then be appointed as the trustee;

6. Once the attorney is appointed, they must then perform their duties as a trustee or corporate trustee director of the self-managed superannuation fund, rather than as an attorney. This obviously carries responsibilities. The attorney carries these responsibilities and obligations in their own personal capacity.

It is very important to ensure that the process is followed properly and all legal requirements are met. I will be more than happy to assist you. Please do not hesitate to contact me if you have any questions regarding SMSF Trusteeship and Enduring Power of Attorneys.

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Written by—

Chloe Kopilovic

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