Understanding critical to attorney powers

Financial advisers must consider that when they appoint an attorney as a superannuation fund trustee, the proscriptions restricting the attorney's power won't apply when he steps into his role as a trustee, according to Hill Legal principal Chris Hill.

This can be a critical factor when clients don't entirely trust their attorney or are very proscriptive with the powers of attorney, he said.

Once appointed, the attorney performs his duties as the trustee, not as the member's attorney. Any restrictions on an attorney doesn't apply to the trustee role, Hill said.

Clients might limit the powers their attorney has to business affairs, assets, or transactions, but if the attorney has trustee power one cannot control his discretion, Hill said. 

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It was an important rule of common law, he added.

Hill emphasised that it was important to follow the mechanical processes when making a trustee appointment.

For example, corporate trustees must be appointed as directors, he said.

The trustee appointment, or removal, must comply strictly with the process of the super fund deed, Hill said.

"It's very important that you drill down into the deed to look at the mechanical provisions for how a person becomes a trustee, and, if there is a power of attorney or legal representative, how they would step into the shoes of a trustee," he said.

Minutes of the meeting and consensus may have to be filed, and relevant declarations made, Hill added.