How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Leon Your Own Question
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 43744
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
12124641
Type Your Australia Law Question Here...
Leon is online now
A new question is answered every 9 seconds

Enduring Powers of Attorney Treena Superannuation Trust -

Customer Question

Enduring Powers of Attorney
Treena Lewis Superannuation Trust - two trustees - ***** ***** and Treena Lewis
***** ***** works away, so Treena Lewis has an Enduring Power of Attorney. Can I (Treena Lewis) open an account with NAB Trade signing for Ian using the Enduring Power of Attorney?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Evening

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

If the POA allows you to open bank accounts in his name then the answer is yes you can.

You can do what he can do.

What is the issue?

Customer: replied 1 year ago.
Hello,
We moved house, so I tried to change the address with NAB Trade (which is where the superannuation is held). I used the Power of Attorney, signed as Ian. I signed the trust for Ian. I opened up the accounts for the super - they are now saying I shouldnt have. I got this email back from them, and I dont think they know what they are talking about.I'd be interested to see what you think of their email.NAB's email
We received your change of address form signature page, signed by yourself (signed again for ***** ***** under POA).
We also received copy of your Power of Attorney.Unfortunately, enduring Power of Attorney for Ian Hamilton Lewis only applies to all of Ian’s personal affairs.
For the Super Fund account Ian's role is a trustee not as an "individual". Therefore, the personal Enduring Power of Attorney cannot be applied.
This means that the Super Fund account that was set-up by NOLT (nab online trading) was done so incorrectly - as yourself had signs the account opening documents on behalf of Ian under Power of Attorney.Please see below requirements in order to unrestricted the account and update the CHESS address:1. Please advise Ian to sign the signature page of the application form.
Attached below.Please post this page to our mailing address below:nabtrade-WF 136959
GPO BOX 4545
Melbourne
ViC 30012. We also require a copy of ID that shows Ian’s signature as we do not have a signature on file for him.
ID can be copy of driver license or passport. ID can be email back via this email address.3. In regards ***** ***** Change of Address, yourself and Ian must also sign the Change of address form (signature page-attached below) for us to continue to process. It cannot be signed under Power of Attorney.Once complete, this page can be email back.4. Please fill in change of personal details form attached below, in order for us to update your best contact number on file.Once completed, you can email back via this email address.If you have further enquiries, give us a call on 13 13 80 (8am to 8pm, Monday to Friday AEST) and quote above reference number.Kind regards,
Imanuela
Digital Communication Associate
nabtrade
Expert:  Leon replied 1 year ago.

Good Evening

The account with the NAB is it in the name of the trust?

Who is the trustee? Is it Ian or a company?

Customer: replied 1 year ago.
Two trustees - Treena Lewis and Ian Hamilton Lewis. Super is ino Treena Lewis Superannuation Fund
Expert:  Leon replied 1 year ago.

Are you able to send me the POA by email

email address is***@******.***

Customer: replied 1 year ago.
I have sent, hope you get it okay.
Customer: replied 1 year ago.
Hello Leon, Just checking, did you get a copy of the Power of Attorney?
Expert:  Leon replied 1 year ago.

I have not got it yet it can take up to 24 hours

But I will get back to you when I receive it.

Customer: replied 1 year ago.
Hello Leon,Just to keep you up to date with communication between NAB and myself - here is today's email. If the POA cant be used within the trust, therefore surely, Treena shouldnt be able to sign anything concerning the trust.Hi Treena,
Thanks for your email.
The enduring POA for Ian Hamilton Lewis applies to all of Ian’s personal affairs, and thus your POA extends to Ian’s accounts where he acts as an “individual”.
For your SMSF account, NT1432308, Ian’s role is a "Trustee" and not as an “Individual”. Therefore, the personal enduring POA cannot be applied.
Upon further investigation, we have discovered that the account was setup incorrectly by NAB Online Trading. The previously requested documentation will allow us to amend the account structure so that it accurately reflects the Trust's structure, and change the address.
Treena, I note that you've previously mentioned the need for the postal address to be updated so that the BHP dividend cheque is posted to the new address. In the inteirm, you will be able to amend the dividend payment information with the BHP registry so that the dividend is paid directly into the Trust's bank account, rather than waiting for a cheque.
Should you have additional questions, please feel free to reply to this email or contact us on 13 13 80 or + 61 3 8872 2316 if calling from outside Australia.
All the best,
John
Digital Communications Associate
nabtrade
GPO BOX 4545, Melbourne VIC. 3001
Expert:  Leon replied 1 year ago.

Good Evening

In relation to the signing for the trust you have to look at what is in the Trust Deed. If it requires both trustees to sign then one signing is not enough.

What they are saying is correct. If the POA is not given in his capacity as trustee you cannot use it for the SMSF.

In order to change this if Ian does not have capacity you may have to get an Order from VCAT.

Customer: replied 1 year ago.
This is what the Accountant said this afternoon in his email - is he wrong:-As Ian is a personal trustee (not a director of a corporate trustee) he is completing his obligations as a natural person so it would appear this falls within the scope of the power of Attorney.
Expert:  Leon replied 1 year ago.

Good Evening

The accountant cannot give that advise and he is incorrect

Here is some information followed by the link it came from and applies in WA

I am the trustee of a trust. Can I appoint someone to act as my attorney in relation to the trust ?
That depends on the terms of the trust and the type of Power of Attorney.

You can’t use a statutory short form General Power of Attorney to authorise an attorney to exercise trustee powers under New South Wales or South Australian law and it will rarely, if ever, be appropriate for a trustee to sign a short form General Power of Attorney in other jurisdictions or a long form General Power of Attorney anywhere. The same is true for an Enduring Power of Attorney. A limited Power of Attorney to sign documents may however be permissible.

Before you give a limited Power of Attorney to sign documents, you need to make sure that you have the power to appoint an attorney under the trust deed or other document governing the trust.

You should seek specific legal advice that covers your situation.

http://www.jameslegal.com.au/faq/powers-of-attorney-guardianship/

Customer: replied 1 year ago.
Leon, VCAT - refers to Victoria, I'm in Western Australia, not Victoria.
Expert:  Leon replied 1 year ago.

My apology about that

What I have stated is correct and in WA you need to go to SAT

http://www.sat.justice.wa.gov.au/G/guardianship_and_administration.aspx

Customer: replied 1 year ago.
SAT refers to Guardians (my Mother applied to be my Grandmothers Guardian, was investigated heavily by SAT, they rang each Grandchild).
I cant see where it refers to SMSF trustees, and POA.
Expert:  Leon replied 1 year ago.

Good Evening

They also deal with POA. It is an order for financial management.

Do you know if the trust deed allows an attorney to be appointed for the Trust?

Customer: replied 1 year ago.
I cant see anywhere obvious where it specifically states 'A POA can be appointed', however:-4.5 The Trustee in the exercise of the powers and discretions conferred by this Deed has an absolute and uncontrolled discretion. If after the exercise of the discretion, the Trustee for any reason forms the opinion that the discretion should be exercised differently, then the Trustee may, subject to the Requirements, re-exercise that discretion.The SMSF has an Auditor go over everything once a year, and I have always used the POA to sign his paperwork without any problems.Do you think the Accountant is wrong in what he has written?
Expert:  Leon replied 1 year ago.

Good Evening

It may be able to be issued under that but it has to be the trust that appoints the POA.

the only other thing, if only 1 trustee can sign then they may be able to appoint you as a POA for the trust.

Customer: replied 1 year ago.
Okay, what if the Trust had a meeting, and in those minutes they bought in a ruling that a POA could be used?
or
Let ***** ***** resign from the Trust? ---I can only ask him - he has his own SMSF with only his name on it anyway. Would another Trust need to be done up? or could the old trust be used?
Expert:  Leon replied 1 year ago.

You cannot use the POA you have it is not by the trust.

It has to be the trust that appoints you and the Trustee of the trust signs it on behalf of the trust.

If Ian is removed as trustee and you appointed then you do not need to use the POA

You can be put in as a new trustee under the current trust and there is no stamp duty.

Customer: replied 1 year ago.
Why do I need to be put in as a new trustee - I'm already a Trusteea/c is ino of Treena Lewis Superannuation Fund, two trustees myself (Treena) and ***** *****1. I am already a trustee, why do I need to be put on as a new trustee
Expert:  Leon replied 1 year ago.

If you want to sign then you have to be appointed. If not then there will only be one and you will not sign.

Customer: replied 1 year ago.
What are the steps required to be 'appointed'
Expert:  Leon replied 1 year ago.

Good Evening

The deed sets it out. The appointer that created the Trust has to appoint you.

The accountant that created the Trust should be able to assist you it is not that hard.

I hope this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Expert:  Leon replied 1 year ago.

Good Morning

Just following things up and seeing if there is anything else I can assist you with?

Regards

Leon