Where SMSF member temporarily overseas.
Some fund managers, especially for Self-Managed Super Funds, require all directors to sign to release monies. They often do not accept a human POA for the directors that are not able to sign.
If you have two directors, then the corporations law requires two directors or a director and a secretary sign documents. If one director loses capacity or is unavailable, the company is unable to sign documents and enter into agreements. Corporate POAs fix this.
A company power of attorney is given by a company. The company appoints a human or another company to act and sign documents on the company’s behalf. A company power of attorney authorises a person or persons to act on behalf of a company. The attorney is allowed to sign documents on the company’s behalf.
The person the company appoints is called an “attorney”. Our company POA is flexible. The company appoints:
The corporate POA provides continuity of company affairs and good stewardship. This is especially if the directors are missing.
A company acts through its directors. Directors sign documents and make decisions for the company. What if the director is missing, sick or unable to act? The company loses its ability to act. Without a functioning director, a company is a ship without a rudder.
The company, itself, may appoint an attorney. This is via a company power of attorney. Under the corporate POA, the attorney has the power to do and sign things for the company. This includes signing documents and making company decisions.
What if the director is unavailable? What if your director is going on holidays? What if your director loses mental capacity?
An Australian company has legal capacity. A company is a person. (Sure, an unnatural person, but a person nonetheless.) As such, under the Corporations Act, a company is allowed to appoint an attorney. It is not necessary to have a specific power in the Company Constitution.
Our Corporate POA is drafted so that it does not matter the company constitution is silent on delegated authority.
The attorney can human or even another company.
There are company POAs. And there are human POAs (enduring and medical). Each State and Territory has its own set of documents for human POAs.)
An individual power of attorney gives your attorney legal authority to manage your assets and financial affairs when the individual is unable to do so. This is for illness, accident and absence. A company power of attorney authorises a person or persons to act on behalf of a company and or sign certain documents on its behalf.
A ‘human’ POA does not work. No, a key reason why company powers of attorneys are so important is that an individual power of attorney is not a substitute for a company power of attorney. Even if you have granted a power of attorney to someone to manage your financial affairs, this does not extend to your company and the attorney cannot sign documents on your behalf in your capacity as director of a company.
A company power of attorney is granted to a person or persons. The company power of attorney is unique to the company.
There are hints as you build your document. For more legal advice telephone us. We are a law firm. We can help you answer the questions.
Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
Mobile: 0477 796 959
National: 1800 141 612
Email: [email protected]