SMSF Corporate Trustee POA

• Company Power of Attorney

• $235 includes GST

• SMSF Corporate Trustee Power of Attorney

  Where SMSF member temporarily overseas.

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Fund Managers and SMSF require a corporate trustee POA

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.

Company POA vs Human POA:

• Company Power of Attorney – a company appoints an attorney (the attorney is another company or human)
• Enduring and Medical/lifestyle POAs – a human appoints an attorney (the attorney is only human)

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:

1. a human
2. humans
3. another company
4. other companies
5. any combination of the above

(In contrast, a human POA (enduring or medical) only appoints another human or humans.)

Director goes walkabout? Company POA saves the day

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.

See also: Central Management and Control of an SMSF

Corporate POA stops the company coming to a standstill

What if the director is unavailable? What if your director is going on holidays? What if your director loses mental capacity?

Company constitution silent on company power of attorney?

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.

Just use a ‘human’  Enduring POA from one of the directors?

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]