Self-Managed Super Funds – Who Runs it if you Lose Capacity?
The information in this fact sheet is intended for informational purposes only and should not be taken as legal advice. D'Angelo Legal does not offer financial advice.
The popularity of self-managed super funds (SMSFs) has been increasing of late. The ability to completely control one's assets appeals to many. However, this control raises an issue: who will manage the fund if you lose capacity?
The Superannuation Industry (Supervision) Act 1993 governs self-managed super funds. Section 17A(3)(b)(ii) of the Act permits a person who holds an Enduring Power of Attorney to be Trustee or a Director of the Corporate Trustee of the Superannuation Fund. This section also ensures that the fund still satisfies the definition of a SMSF.
However, the appointment of the legal personal representative must be in accordance with the trust deed and any other relevant legislation.
The legal personal representative will be acting in their personal capacity as a trustee and will thereby be liable for civil and criminal penalties for any breaches of duties.
If you do have a SMSF, it is important that you have an Enduring Power of Attorney drafted in the event that you lose capacity or reach the stage where you no longer wish to manage the SMSF yourself.
You should seek the advice of a qualified financial planner or accountant on the economic benefits of a SMSF. If you are in need of a Will or Enduring Power of Attorney, please contact D'Angelo Legal on 9381 1147 or firstname.lastname@example.org to book an appointment.