The matter of whether an attorney can make or renew a superannuation binding death benefit nomination on behalf of a principal is complex and depends on a range of factors including:-
1. The terms of the enduring power of attorney document itself;
2. The terms of the trust deed for the superannuation fund;
3. The State the member lives in;
4. The relationship between the attorney and the principal; and
5. Who the interested beneficiaries are for the superannuation balance.
The terms of the enduring power of attorney document
It is important the terms of the enduring power of attorney document be reviewed in determining whether an attorney can make or renew a superannuation binding death benefit nomination. A principal has the ability to limit or specify the terms in which an attorney can act on their behalf. In Queensland, unless the document specifically excludes an attorney from renewing or making a superannuation binding death benefit nomination, the attorney has the power to do so under the legislation.
Superannuation Fund Trust Deed
The superannuation fund trust deed may limit the actions of an attorney to renew or make a superannuation binding death benefit nomination on behalf of the principal. It is recommended the terms of the superannuation fund trust deed be reviewed to ensure the trust deed does not exclude the attorney’s ability to make a binding death benefit nomination.
Relationship between the attorney and principal
The relationship between the attorney and principal needs to be considered. Unless specifically provided for in the terms of the enduring power of attorney, an attorney cannot act in a conflict of interest. That is, an attorney cannot act on a principal’s behalf where the decision would benefit the attorney or a member of their family. It is here that the interested beneficiaries of the superannuation balance must also be considered.
As stated, determining whether an attorney can make or renew a superannuation binding death benefit nomination is complex and a number of factors need to be considered. We recommend you always seek legal advice.
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