The Supreme Court of Queensland has decided that an Attorney has the power to make or renew a Superannuation Binding Death Benefit Nomination.
This novel decision has far reaching consequences in an area that has for many years created uncertainty and difficulty for families where wealth resides in the Superannuation Account of a family member who has lost capacity before completing adequate documentation.
It has also been a grave concern for many elderly Superannuants who may in the future face capacity issues.
Not all Superannuation Fund Trust Deeds permit Non-Lapsing Binding Nominations and circumstances continue to exist where a Member of a Superannuation Fund can only make a Binding Nomination which shall lapse after 3 years. The Member has had no certainty that they will be able to refresh, renew or make a new Binding Nomination when that time period expires and their existing Nomination lapses.
There are limitations to this decision, notably:-
- the Power of Attorney document must be specifically worded;
- “standard” Powers of Attorney downloaded from the net will not work;
- not every Attorney will have the right to make or renew a Binding Death Benefit Nomination;
- the Case does not provide unfettered authority to Attorneys to make new Binding Death Benefit Nominations;
- some existing Power of Attorney documents may give a right to Attorneys which the Donor may not wish to give.
Whilst this decision is welcome in clarifying an area that was previously judicially undecided it has made it essential for every Superannuation Member to get a health check on their existing Enduring Power of Attorney and ensure that it provides only those rights to deal with Superannuation that the Donor wishes to give.
We therefore strongly recommend a review of all existing Financial Enduring Powers of Attorney in light of the recent Supreme Court decision.
The information in this document represents general information and should not be relied on for your specific circumstances. If you require legal advice and assistance on the matters contained or associated in this document you should contact MMLaw. Please contact Malcolm McColm.