Note that in some states and territories, such as B. NSW, an EPoA is actually referred to as a general power of attorney. However, there is the option of converting a general power of attorney into an EPoA by appropriately wording or ticking the correct boxes, which refers to the persistent aspect of the power of attorney that makes it persist despite the principal and lose capacity.
When asked to be an EPoA, you will be selected based on your trustworthiness, ability to be good with money, ability to remain calm in a crisis, and confidence, on behalf of the person or people you have asked to express oneself to take on this role. and are available for it. As an EPoA, you may be asked to speak to doctors, lawyers, and other counselors. If an SMSF is involved, you can add dealing with an accountant or fund manager to this list.
In all circumstances, said Butler, an EPoA must act honestly, conscientiously, and in good faith, with reasonable skill and care, and be ready to keep accurate records and reports of its actions.
And all of this without a reward. The law recognizes the role of an EPoA and general power of attorney as offices held on an honorary basis by the person or persons they appoint, and unless the appointment document specifically provides for compensation, there are none. However, you can request the reimbursement of reasonable and necessary expenses.
When an EPoA makes a decision on behalf of a person who has appointed it, it must follow as closely as possible the wishes of the person or persons it is helping. This suggests that you really need to understand what is expected of you.
SMSF commitments
As for SMSFs and EPoAs, Butler said, there is a significant risk over time that some SMSF members could lose their ability to manage their own affairs. Without planning, this can create significant uncertainty and risk regarding the control of an SMSF, which comes with significant tax and regulatory responsibilities.
The establishment of an EPoA can help overcome such problems, as the “permanent” involvement of a trusted person enables the Fund to continue operating in the event of one or more member trustees becoming lost. What becomes an EPoA is the member’s legal personal representative (LPR).
As an attorney with decades of experience in SMSFs, Butler strongly recommends that each SMSF implement an EPoA as part of their personal succession plan. It would not be an exaggeration to say that an SMSF member without an EPoA is a significant risk.
While members retain the ability to make their own decisions, an EPoA should be reviewed regularly to ensure that it continues to be appropriate. Any expectation of an attorney is especially important when a circumstance like yours arises.
Such an expectation can result in an orderly liquidation of the fund in the case of an SMSF. To do this, you need the support of the accountant or manager of the fund.
Administrator Meg Heffron, managing director of Heffron SMSF Solutions, says the challenges she faces in helping a lawyer take on a legal practice start with making sure it is not a general power of attorney, but one permanent power of attorney.
Paper trace
According to Heffron, you must ensure that you actually become a fund trustee by being appointed director of the trust company or as an individual trustee (depending on the trust structure of the fund) and that the member suffering from dementia is removed as trustee. Director.
It is very important to ensure that all documents are correctly signed by the attorney and any other party. For example, once an attorney becomes a trustee / director of an SMSF, documents are signed as trustee / director in his own capacity and not “as an advocate for …”.
However, if you make member decisions (e.g. to obtain a service), you must sign the member’s “proxy for …”.
A very important consideration is to make sure you understand that you are fully liable for the fund – just like any other trustee / director. This includes tax and regulatory responsibilities, including the possibility of significant penalties under the SIS Act.
Butler says it should be noted that the appointment of a member’s attorney as a trustee / director under an EPoA is expressly set out in the Superannuation Industry (Supervision) Act 1993 (under s17A (3) (b) (ii)) for the purposes of trustee- Membership rules that apply to SMSFs.
Please help
When it comes to finding help with the burden of performing EPoA duties, there are a number of advisors such as accountants, lawyers and financial planners who provide advice and related services.
If the person who appointed you to an EPoA is capable of making decisions, you can ask them to appoint a replacement or additional attorney if the task alone is too difficult for you.
Butler says it is important to know that a person cannot be forced to become a lawyer.
However, if you are the only attorney and the person who appointed you does not have the power to appoint another person, there are guardianship courts in every state that can help you. For example, the Victorian Civil and Administrative Tribunal (VCAT) has a Guardianship Division, as does the NSW Equivalent (NCAT). The same applies to Western Australia, South Australia, Queensland and Tasmania.
These departments can appoint guardians to make personal and lifestyle decisions for those with decision-making disabilities. You can appoint a finance and lifestyle manager for someone who is unable to manage their affairs, including medical and dental care. You can also review permanent power of attorney regimes, for example to determine whether the lawyer is properly performing his duties and responsibilities.
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