The ALRC paid particular attention to the issue of death grants nominations. Remember, your super is not yours. It is held in trust for you by your super fund. It is therefore not part of your estate and cannot be treated according to your will (unless you instruct your super fund to give it to your estate). The trustee of the super fund decides what happens to your super unless you instruct them exactly what you want to do with it. To do this, you need a binding death claim (BDBN). You can make a no-obligation nomination, but that’s a discussion for another day.
The ALRC made several points regarding attorneys and BDBNs. He stated that nominations are testamentary in nature and should be treated “similarly to wills” in political terms.
Hence, it is important that any powers given to your permanent attorney should be explicit, including the ability to designate yourself and change the BDBN in your favor if you so wish (remember that the EPOA very much often the spouse of the client who wants to benefit from his superior).
In the Queensland Supreme Court’s Re Narumon Pty Ltd (2018) case, the court appeared to accept the ALRC’s view that there appears to be no legal restrictions in the Pension Act or regulations that would prevent a person from acting under a EPOA from completing and signing a death claim.
The court further stated that, in order for an EPOA to have the necessary authority, it must first comply with the terms of the retirement trust deed, then the terms of the local jurisdiction law on EPOA, and finally comply with federal retirement laws and regulations. In the Narumon case, the extension of the pre-existing BDBN was approved by the court, although the judge found that he might not have approved a new or significantly modified BDBN had the lawyer benefited from the new instructions.
The lesson is to be sure that your EPOA is clear and complete with what your attorney may or may not do with your Super, including creating a new BDBN, changing or simply extending the term of an existing BDBN yourself Your super investments or even subtract some or all of your super and what to do with the proceeds. If you state all of this clearly, it will not “depend” on anything else.
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