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In this edition of It depends, partner Hayley Mitchell talks about whether an attorney can make or renew a superannuation binding death benefit nomination.
Hello and welcome to another edition of It depends.
Today, I’m going to be talking about whether an attorney can make or renew a superannuation binding death benefit nomination.
Whether the attorney has the power to make or renew a binding nomination is a fairly complex question, and it really depends on a number of factors, including which state the member of the superannuation fund lives in, the terms of the enduring power of attorney document itself, the terms of the trust deed for the super fund, the relationship between the attorney and the principal, and who are the interested beneficiaries for the superannuation balance.
As I said, it depends on what state the member of the superannuation fund lived in. But for Queensland purposes, if the power of attorney document doesn’t exclude the power to make a binding death benefit nomination, then the attorney has the power under the legislation.
However, it will be important to check the terms of the enduring power of attorney document itself. It may contain limitations or specific terms around when the attorney can make or renew the binding death benefit nomination.
It will be important to understand the exact interpretation of a clause dealing with this. In particular, whether it allows the attorney to make an entirely new binding nomination or just limits the attorney’s ability to renew or refresh an existing binding nomination already in place.
The Queensland case of Re Rentis focuses on the interpretation of enduring powers of attorney and this topic quite well, so it’s a good reference to have a read of.
The terms of the super fund trust deed are also going to be relevant. Here it’s going to be important to check that the trust deed doesn’t exclude an attorney’s ability to make a binding death benefit nomination.
If the deed is silent on the question, my view is that it allows the attorney to make the nomination.
An attorney cannot act in a conflict of interest. This means that an attorney can’t make a decision that potentially benefits themselves or a member of their family. Therefore, it will be necessary to consider whether the attorney making or renewing the binding nomination benefits themselves or a member of their family in some way.
So, checking the terms of the power of attorney document, the terms of the trust deed and considering conflict issues is really just the starting point for this question.
As I said earlier, the outcome to this question is really going to depend on a number of factors. Seeking legal advice on this is a must.
So, contact a member of our team if you’ve got questions about dealing with an attorney and a binding death benefit nomination.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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