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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?
The account with the NAB is it in the name of the trust?
Who is the trustee? Is it Ian or a company?
Are you able to send me the POA by email
email address is***@******.***
I have not got it yet it can take up to 24 hours
But I will get back to you when I receive it.
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.
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.
My apology about that
What I have stated is correct and in WA you need to go to SAT
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?
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.
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.
If you want to sign then you have to be appointed. If not then there will only be one and you will not sign.
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
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Just following things up and seeing if there is anything else I can assist you with?