All superannuation funds require a Trustee to manage them, so the questions is who (or what) can be a SMSF Trustee and how do they manage the core risks involved?
What is a SMSF Trustee?
An SMSF must have either a corporate trustee managing them, or individual (human) trustees. When you set up an SMSF you take on the role of either:
- Individual Trustee, or
- Director of a company acting as the trustee (called a corporate trustee)
An Individual Trustee (human) is simply a person who manages a trust and a Corporate Trustee is a company entity that acts as trustee of a trust. Many SMSFs us a Corporate Trustee structure where a company, rather than an individual human, acts as the Trustee of an SMSF.
With great power comes great responsibility
The power of a Trustee is significant, and needs to be protected. Trustee of an SMSF decides how much money you can be put in the fund, who can become members, how the funds are used and invested, how much gets paid out to a member and when, and finally who gets what’s left over when a member dies.
What's a Corporate Trustee?
SMSFs who use a company structure to act as its SMSF trustee, usually with members of the SMSF acting as directors of that company, are said to have a Corporate Trustee.
This creates problems when;
- there is only a single member of an SMSF, or
- when there is a single director of the company acting as the Corporate Trustee of the SMSF.
The Directors of that SMSF Trustee company need to have adequate protections in place, and this includes a Company Power of Attorney document.
- Not having this protective document in place presents is an unacceptable risk to the SMSF members
- Not having this protective document in place when the Corporate Trustee only has a sole director, is an unacceptable risk.
- If your current SMSF Advisor has not brought this risk management issue to your attention, perhaps it's time to find a better SMSF Advisor.
The Law: The Corporations Act 2001 (Cth) requires a company to have at least one director. Without a director, a company in breach of the Act, and the business may not be able to operate properly. For these reasons alone, you need to have a plan in place if you are not able to act as a director of your company.
What's the problem facing an SMSF Trustee?
If the Director of the Trustee company becomes incapacitated and unable to continue to make decisions, the Trustee company can become locked.
The SMSF becomes unworkable without a person with a SMSF corporate power of attorney document in place authorising another individual to step into the decision making void, left vacant by the incapacity or absence of a functioning director.
- The Trustee company loses its ability to act without a functioning director, and is then a ship without a rudder.
- The SMSF Trustee Power of Attorney provides continuity of company affairs and good stewardship.
Important: The role of Company Director is one that cannot be exercised under a personal Power of Attorney document.
When does its need arise?
Depending on your company SMSF Trustee constitution, a director’s role is usually automatically vacated on a director’s incapacity or death. In these situations, you need to have someone ready and capable of taking control of the company immediately.
- A Director is the decision maker of a company and this role cannot be inherited, gifted, or addressed under a personal Power of Attorney.
- If you're the sole director and shareholder of a private company, you must have a backup plan in place if you lose the mental capacity to continue to make decisions, (or even die).
Failing to have a documented plan for this eventuality will leave the trustee company and its funds members vulnerable.
When to establish a SMSF Trustee Power of Attorney?
Under the Corporations Act, a company is allowed to appoint an attorney and it is not necessary to have a specific power in the Company constitution to do so.
- Do you have a SMSF with a Corporate Trustee structure?
- Are you the sole director and shareholder of a company that acts as a Corporate Trustee for a Trust or a Self-Managed Super Fund (SMSF)?
If you answered 'Yes' to any of the above, then you need an SMSF Trustee Power of Attorney.
This is not something you can continue to put off
It can cause real distress and financial hardship to your family if you are the sole director of your Corporate SMSF Trustee company and there is no one authorised to direct or manage that company business if you lose legal capacity, or die.
- Failure to plan for this eventuality can affect the Compliant Superannuation status of the fund and many leave you personally liable for the loss sustained by the members of the SMSF.
Pro Tip: If a company SMSF Trustee director dies, does the Company SMSF Trustee Power of Attorney stop working? No. It does not. A Company SMSF Trustee Power of Attorney is given by the company, and not by the director. Directors come and go, move on and even pass away. Unlike a personal Power of Attorney, the movement of company directors has no bearing on a Corporate SMSF Trustee Power of Attorney that continues until revoked.
How we can help
- We work with SMSF Trustees and law firms and we can supply this legal document.
Contact us for a confidential chat about your current SMSF needs.
