SMSF member overseas or of unsound mind? 47% tax penalty. POA to the rescue?

POAs and SMSFs

To operate a complying SMSF you must:SMSF sound mind crazy poa

1. live in Australia; and
2. be of sound mind.

1. Leave Australia: Your Self-Managed Superannuation Fund must satisfy the 3 residency tests. One of those tests is that ‘central management and control’ of the SMSF remains in Australia.

However, the ATO allows SMSF members to leave the country for up to 2 years. But if a member leaves Australia for more than 2 years, the central management and control test fails. Then, the SMSF is no longer a complying SMSF.

2. Unsound mind: If you lack mental capacity (e.g. dementia) then you can no longer remain a trustee of your SMSF.

Failure of either of the above means your SMSF is non-complying. A non-complying SMSF is taxed up to 47%. A complying POA may pass control to the desired person. This is when the member is no longer able to act in a position of control. For example while overseas or lacking mental capacity.

Is an SMSF a ‘trust’?

A ‘trust’ has a trustee holding assets for a beneficiary. Trusts derive from ancient English law. Obviously, all superannuation funds and SMSFs are trusts. The trustee protects the assets for the beneficiaries. Sir Robert Megarry stated in Cowan v Scargill:

“I can see no reason for holding that different principles apply to pension fund trusts from those which apply to other
trusts. Of course, there are many provisions in pension schemes that are not to be found in private trusts, and to
these, the general law of trusts will be subordinated. But subject to that, I think the trusts of pension funds are subject
to the same rules as other trusts.”

This approach is confirmed in the Superannuation Industry (Supervision) Act 1993 (SIS Act).

ATO taxation ruling for SMSF and POAs

In response to the High Court decision of Bywater Investments Limited & Ors v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation [2016] HCA 45, the ATO published ruling TR 2017/D2. The ruling sets out the Commissioner’s considered view on how to apply the central management and control test of company residency.

While the draft ruling is not SMSF-specific, it affects the application of the ‘residency test’ and therefore whether overseas holidaymakers continue to operate a complying SMSF in Australia.

Paragraph 17 of the ruling says a person who has power or authority to control and direct a company but does not use it, does not exercise central management and control.

Paragraph 18 says:

In limited circumstances a person may control and direct a company without ongoing active intervention in the company’s affairs provided they:

  • have appointed agents or managers whom they tacitly control to conduct the company’s day-to-day business
  • tacitly control and regularly exercise oversight of the affairs of the company, including monitoring the company’s performance, and
  • do not need to actively intervene because the company’s affairs are running

The ruling makes it necessary for overseas holidaymakers to have their SMSF documents reviewed and updated, or run the risk of having their SMSF taxed at 47%.

Company Power of Attorney

All SMSF members must be Trustees or Directors of the Trustee – but not always

Section 17A SISA states that all SMSF fund members are trustees or directors of the corporate trustee.

There are exemptions to this blanket rule. However, other persons may be trustees or directors where a member dies, is physically or mentally incapacitated or is a minor. Section 17A(3)(b)(ii)  allows the member’s legal personal representative to be a trustee or director. This is in place of the member during any period when they hold an Enduring Power of Attorney.

Why do SMSF members and the trustees have to be the same people?

What used to happen was that dad was the sole trustee of the SMSF. The other members, being mum and the children were not the trustee. If dad made a mistake the wife and children say that it wasn’t their fault. They would argue it isn’t fair for the ATO to inflict penalties on them as innocent parties. The government got sick of hearing that story and changed the law so that every member had to be the trustee as well. (Or, if there was a company, then all the members are the only directors.)

Therefore, the members of an SMSF have full responsibility for the management, administration and investment of the fund. The members control the fund. This causes problems if a member lacks mental capacity. They can’t, therefore, remain as trustee/director of a corporate trustee. In this case, section 17A SIS Act provides the ability to appoint a representative for the suffering member. This is to act in place of the suffering member.

What is a Legal Personal Representative (LPR) for an SMSF?

When we talk about an LPR we traditionally associate this person as the executor in your Will. However, under section 10(1) SIS an LPR includes:

‘a person who holds an enduring power of attorney granted by a person’

Bankruptcy Trust in Wills

Avoiding the penalty tax in a SMSF

Members can leave Australia for more than 2 years without suffering 47% tax on their SMSF. But they need to have completed the paperwork BEFORE they leave Australia.

To avoid loss of central management and control a member (the principal) signs a specialised enduring power of attorney (POA). This is in favour of a legal personal representative. The person you appoint is called the attorney. If correctly done the appointment of the attorney as a trustee (or director of the corporate trustee) allows the SMSF to remain complying.

All Legal Consolidated POAs, right around Australia, comply with the SIS Regulations.

But, a POA does not work if:

1. The SMSF member is “disqualified”. See section 17A(10) SIS Act.
2. Your legal personal representative is not allowed as a trustee (or a director of a corporate trustee). A ‘legal personal representative’ includes a person holding a POA.

Section 17A allows a member who no longer wishes, or cannot continue to act as trustee to escape as trustee. It allows the SMSF to remain compliant.

Medical/Lifestyle POAs and common law POAs don’t work.

If there is a company as Trustee of the SMSF then you also need an SMSF Corporate POA.

Reasons to hand over control of your SMSF

You must put in place a POA if you are going to be out of Australia for more than two years or you are losing mental capacity. You may wish to escape the obligation of being a Trustee where:

1. you are going overseas, possibly for more than two years. You must put the POA in place before you leave. There is no ‘wait and see’ rule.
2. you just don’t want to have the responsibility anymore
3. you are sick
4. you are physically or mentally incapacitated

What is a POA for an SMSF?

Generally, you (principal) empower another person (attorney) to represent you or act in your stead. Your attorney ‘stands in your shoes’. Your attorney, however, cannot do everything. For example, your attorney can’t vote or make a Will for you.

Each Australian jurisdiction has its own legislation governing POAs. There are 8 different types of Enduring POAs in Australia:

1. Powers of Attorney Act 2000 (Tas)
2. Powers of Attorney Act 1980 (NT)
3. Powers of Attorney Act 1998 (Qld)
4. Powers of Attorney Act 2006 (ACT)
5. Powers of Attorney Act 2003 (NSW)
6. Powers of Attorney and Agency Act 1984 (SA)
7. Property Law Act 1969 (WA) and Guardianship and Administration Act 1990 (WA) [A Property Law Act POA does not work for SMSFs]
8. Powers of Attorney Act 2014 (Vic)

Except for WA, all jurisdictions recognise an out-of-state POA:

* Victoria: validly made EPOA made in another State or Territory is recognised in Victoria. Section 138 Powers of Attorney Act 2014 (Vic).
* NSW Enduring POA: POA made in another State or Territory is recognised in NSW. Section 25 Powers of Attorney Act 2003 (NSW).
* SA Enduring POA: Interstate POA is valid to the extent that the powers it gives under the laws of the jurisdiction in which the POA was made could validly have been given by a POA made under the South Australia Act.  Section 14 Powers of Attorney and Agency Act 1984 (SA).
* QLD Enduring POA: A POA made in another jurisdiction that complies with the requirements of that other jurisdiction is recognised to the extent that the powers it gives could validly have been given by a Queensland POA. Section 34 Powers of Attorney Act 1998 (Qld).
* WA Enduring POA: Sadly, the attorney must first apply to the WA State Administrative Tribunal. This is for an order recognising the POA in WA. The Tribunal must be satisfied that the form and effect of the POA correspond sufficiently to a POA made in Western Australia. Section 104A Guardianship and Administration Act 1990 (WA). Good luck with that.
* TAS Enduring POA: A POA ‘registered’ in another jurisdiction validly registered in Tasmania. Further, a POA made in another jurisdiction can be registered in Tasmania. But, only if it complies with the laws of Tasmania or the laws of another Australian jurisdiction. Sections 42 and 43 Powers of Attorney Act 2000 (TAS). However, as a sign of how out of touch the Tasmanian government is, there is no ‘registration’ in any other jurisdiction, other than Tasmania. Only Tasmania keeps a mandatory register of enduring and medical POAs.
* NT and ACT Enduring POAs: recognise POAs and common law POAs. In the Northern Territory and ACT, the interstate POA or common law POA is treated as though it was made under the respective NT or ACT Act.

But in practice, other States do not want to look at an out of State POA

Most land title offices do not acknowledge or even want to look at POAs made out of their home State. They say “we don’t have time to look at strange POAs from other States”. So you have to take the above recognition with a pinch of salt. Banks can barely understand a ‘local’ POA and are also unlikely to want to act on an ‘exotic’ out-of-State POA.

So, contrary to the above list, often an out-of-State POA is not recognised.  Therefore, the SMSF member should prepare additional out-of-State POAs. If the SMSF member does not have the mental capacity to make out-of-State POAs then some State administrative bodies have that power. That is often expensive and time-consuming. You often get mixed results with neighbours and distant relatives sharing their views about you at the Tribunal. I remember, in one case, where the uncle exclaimed ‘he was a horrible child.’


Free Australian insanity and POA Tool Kit

Resources to teach you how to use Australia’s 16 different types of POAs:


Bankrupt SMSF Member and Trustees

When a Trustee becomes insolvent or is declared bankrupt, they are classified as a disqualified person. A disqualified person should not be a Trustee of a Superannuation Fund or a Director of a Corporate Trustee.

Under Section 126K Superannuation Industry Supervision Act 1993 (SIS Act), penalties apply, if a person continues to act as a Trustee of the SMSF after knowing they are disqualified.

Steps when an SMSF member is (bankrupt) disqualified person:

When you become a disqualified person, you:

  1. remove yourself as a Trustee immediately; and
  2. have six months to restructure the Self-Managed Superannuation Fund.

POA and the SMSF bankrupt

Once the Trustees in the Fund is disqualified, they will not be able to appoint a Power of Attorney (POA) to continue managing the Fund as the Fund no longer meets the definition of an SMSF (s17a (10)).

The impact of a trustee/member of an SMSF becoming bankrupt is significant for the member.

The effect of an SMSF trustee going personally bankrupt

Bankruptcy and the superannuation rules

When an SMSF trustee/member goes bankrupt, they are ‘disqualified persons’. This is under the Superannuation Industry (Supervision) Act. You are a disqualified person if you are an undischarged bankrupt. You are insolvent under administration.

You commit an offence if you act as trustee of your SMSF. A failure to resign immediately as an SMSF trustee exposes you to penalties. This includes fines and imprisonment.

What happens to a bankrupt’s Self-Managed Super Fund?

While you resign as an SMSF trustee:

  1. you do not immediately stop being an SMSF member
  2. your SMSF no longer technically satisfies the definition of an SMSF
  3. but your SMSF has six months where it is deemed to satisfy the definitionSMSF going overseas POA

During these six months, you and your other members address the trustee breach.

1. How to get your SMSF compliant when the member is bankrupt – bankrupt member rolls over his assets to another non-SMSF fund

As a bankrupt, you cash up your asset in your SMSF. And roll over the superannuation money to a non-SMSF. This includes a retail and industry fund. Simple.

But if your SMSF owns a big lumpy asset such as a block of flats in Double Bay, NSW then you cannot just ‘cash in’ a 1/3rd interest in land.

2. Someone acting as trustee on behalf of the individual bankrupt – sorry this does not work

The SIS Act allows that someone (other than the member) acts in that member’s place as trustee. But this is only in specific circumstances:

  • parent or guardian acts as trustee in the place of a child (who is under a legal disability or under 18 years of age)
  • a person holding and Enduring Power of Attorney of the member. But this is only where the member has lost capacity due to illness or old age, or the member does not want to do the job (rather than a bankrupt where the member can no longer, by law, be a director of a corporate trustee or a trustee)

Superannuation rules specifically prohibit a person with an EPOA of the disqualified person acting as the trustee of the SMSF on behalf of that person.

The bankrupt member has no option. They must remove themselves as a member of their SMSF within the six-month period.

“Disqualified person” for their SMSF Corporate Trustee?

Usually, the member is not a trustee of their SMSF. They are, instead, normally a director of the company that is the trustee of the SMSF. This is even worse for a bankrupt.  A director who is a disqualified person (including a bankrupt) is not able to continue as a director of the corporate trustee. The corporate trustee is immediately tainted. Under the definition of a disqualified person, the corporate trustee itself is a disqualified person. It is irrelevant that the majority of directors are not themselves disqualified persons.

The disqualified person must cease to act as a director of the corporate trustee immediately. There is no 6-month extension.

Other examples of a ‘disqualified person’ for SMSF rules

As well as an undischarged bankrupt, a “disqualified person” includes:

  • convicted of an offence of dishonest conduct
  • civil penalty order under the SIS Act
  • Commissioner of Taxation makes an order that the individual is not a fit and proper person to be a trustee of an SMSF

A corporate trustee is a “disqualified person where:

  • A responsible officer (including a director) of the corporate trustee is a disqualified person
  • A receiver is appointed for property owned by the company
  • A provisional liquidator is appointed for the company
  • The company is being wound up.

If you have already lost mental capacity – then it is too late for your SMSF

What happens if a member loses mental capacity and has no POA. Sadly they:

1. are automatically unable to act as a trustee of the fund; and
2. cannot act as a director of an Australian company
3. can no longer sign a POA (you have to be of sound mind to sign a POA)

If you forgot to prepare a Legal Consolidated POA before you become of unsound mind then:

1. The SMSF fund can become a small APRA fund. This is instead of an SMSF. It involves a registered trustee appointed as trustee. This is excessively expensive. The APRA trustee unceremoniously dumps your real estate, art and unlisted property trusts. They generally do not have time to talk to you about what you want.

2. Or, you sell the assets in your SMSF. And roll over to a retail super fund. You have 6 months to sell everything and roll over the cash. The capital gains tax is usually 15% or 10%. All the money and time you spent acquiring the asset is lost. You may be selling at a bad time.

3. Or, you apply to the local State Tribunal for an order. But this is expensive and may not work.

So, you need to have put everything in place while you are of sound mind.

Secondly, the replacement of a trustee using a POA can lead to the member losing membership of the SMSF.

The ATO in SMSFR 2010/2 confirms what must happen on a member’s incapacity. The legal personal representative (attorney under your POA) is appointed as a trustee of the SMSF (or a director of the corporate trustee). Further, the member ceases as a trustee of the SMSF (or a director of the corporate trustee). This is except where the legal personal representative is appointed as an alternate director. If the legal personal representative is appointed as an alternate director, they can only hold that office while the appointing director is also a director.

The ATO ruling for SMSFs confirms:

  • To comply with section 17A (3)(b)(ii) the legal personal representative is appointed as a trustee of the SMSF (or a director of the corporate trustee).
  • The appointment of the legal personal representative as a trustee and the removal of the member is according to the SMSF trust deed, the SISA and any other relevant legislation. So at Legal Consolidated we always update the SMSF deed.
  • The appointment of the legal personal representative as a director of the corporate trustee. The member is removed from this position. This is under the company constitution of the corporate trustee, the SISA and the Corporations Act 2001.
  • 10. A member who is a director of the corporate trustee may also appoint their legal personal representative holding a POA as an alternate director in their place. This is under the corporate trustee’s constitution or section 201K of the Corporations Act. If the LPR is appointed as an alternate director, he is so appointed in his own right. He is not the member’s agent. Plus, the terms of the appointment must only empower the LPR to act as a director when the member is not performing those duties himself. The member is not removed from the position of director in these circumstances.
  • The LPR performs his duties as a trustee of the SMSF (or a director of the corporate trustee of the SMSF). This is pursuant to his appointment to that position. This is not an attorney or agent of the member. Strangely, any POA rules against conferring trustee duties and powers via a power of attorney or common-law restrictions on attorneys undertaking directors’ duties are not relevant to the application of the exception contained in subparagraph 17A(3)(b)(ii).
  • Also, as the legal personal representative is acting in a personal capacity as a trustee of the SMSF, the legal personal representative is subject to civil and criminal penalties for any breaches of their duties under the SISA or other legislation.

Likewise, a legal personal representative who is a director of the corporate trustee is also subject to civil and criminal penalties for breaches of the SISA and the Corporations Act.

What is an alternate director for an SMSF?

An alternate director is a person who steps in as a director to exercise the appointing director’s powers. For example, a director who is unable to attend a directors’ meeting or to their duties while they are overseas can appoint a person to act for them as their alternate director for the relevant period.

Under the Corporations Act 2001 (Cth) a director may appoint an alternate director to exercise some or all of the appointing director’s powers for a specified period. The exercise of a power by an alternate director is just as effective as if it was exercised by the appointing director. Section 201K of the Act is a replaceable rule for the appointment of an alternate director. However, each company constitution must be checked to see whether an alternate director role exists and what rules govern that role. Alternatively, you can update a company constitution here:

The alternate director’s appointment stops if the appointing director resigns as a director. This is relevant where the appointing director loses mental capacity. If the director loses mental capacity they automatically are no longer a director. As they are no longer a director the alternate director stops holding the job. An alternate director is useless for succession.

Sadly, many POAs don’t work for your SMSF

Build a POA that, in itself, can be used for the central management control purposes with an SMSF here:

A POA is based in one particular State or Territory. About 28.5% of POA made by non-lawyers do not work. Only lawyers are legally able to prepare Deeds in Australia. However, about 12% of POAs created by lawyers also do not work. POAs are formal Deeds with many rules.

The Elder Abuse – A National Legal Response report regarding an attorney stepping in to replace a member of an SMSF under section 17(3)(b) SIS Act stated:

“7.111 Where a person has a legal disability and their enduring attorney seeks to become the trustee or director of the corporate trustee, the ALRC notes that, aside from sophisticated investors and their professional advisers, there appears to be a general lack of awareness of the complexity that surrounds the process of appointing the enduring attorney as a director/trustee of an SMSF.

7.112 The process for an enduring attorney to take control of the SMSF on the principal’s loss of capacity is not straightforward, particularly when compared to dealing with bank accounts.”
Australian Law Reform Commission, June 2017

A person can act in two capacities. Either as a trustee or as an attorney. When you appoint an attorney for your SMSF how is that attorney to act?

“7.177 When an attorney becomes a director or trustee in relation to an SMSF, they do so in their personal capacity. Not in their capacity as an attorney. In that role, they are bound by the general law of fiduciary duties of trustees or the Corporations Act, and not the State and Territory powers of attorney legislation.”

At Legal Consolidated we agree. This is as far as the SMSF is concerned. However, this is not in keeping with State law. Under most States when you hold a POA you act as an attorney. You don’t act in a personal capacity. The confusion of jurisdiction adds complexity.

An Enduring POA is State law. The Corporations Act, which controls directors, is Commonwealth law. A POA attorney is not entitled to act for a director. A director’s job is ‘personal’. See:

  • Saad v Doumeny Holdings Pty Ltd [2005] NSWSC 893 paragraph 17; and
  • Mancini v Mancini (1999) 17 ACLC 1570 at 1577-1578, per Bryson J.

The SMSF member has already left Australia – they are stranded overseas

Q: I have an SMSF client that is looking to get complying enduring power of attorneys to replace either one or both of them as directors of their corporate trustee. It will be a Victorian Enduring POA.

Two questions:

  1. How do I get special wording to limit the enduring power of attorney to superannuation only? Please let me know if this is not the right thing to do.
  2. Does your solicitor letter include instructions on how to get it signed/witnessed where the person granting the powers is overseas and the nominated attorney is in Australia?

The purpose is to keep their SMSF an Australian resident. And therefore try and keep it compliant with SIS.

The SMSF was established in Australia and they have no active members. It is a central management and control issue only.

They have been overseas since early 2019 and had planned to return within two years. But they are stranded overseas due to Covid-19. 

A: Legal Consolidated does not give advice on the central management and control for an SMSF. We only provide complying POAs. Our job ends there.

While we do not provide advice, and we do not know your client’s unique set of facts we make these general comments:

Be careful when acting for careless clients

There is always some type of crisis happening in the world. Covid-19 was just one of many examples of that. Clients are foolish to leave Australia without first bedding down the Central Management and Control issues for their SMSF. By acting so recklessly your clients have put a huge potential negligence risk in your lap as their accountant. Be careful. It is often too late to rectify. Or rectification is time-sensitive. The ATO Covid-19 relief started to be wound back by 30 June 2022.

Should you prepare Enduring POAs with limited powers?

A POA can be drafted to reduce the powers to only deal with matters concerning the SMSF. But we have found such POAs problematic. The wording is complex. It is not usual. Banks and government regulators are not used to seeing ‘restricted’ POAs. The local title offices often refuse to accept them. 
Also, the powers in the POA are too restrictive. While the POA may give powers to the attorney for the SMSF itself, it may not give the power to deal with the assets in the SMSF, whatever they are from time to time. We had one situation where the insurance company’s lawyer after 4 months of thought decided the POA did not apply to the insurance held by the SMSF!

For SMSF Central Management and Control is it better to prepare ‘unlimited’ POAs

It is generally better to provide a ‘standard’ Legal Consolidated POA which has no restrictions on the powers. The risk, of course, is that the person holding the POA can attend to other things outside of your superannuation. So pick people you can trust. Or if you trust no one then do not go overseas. Or, wind up your SMSF.

Signing an Australian POA when you are overseas

We have acted for many clients that have never been to Australia. And never will come to Australia. And they have appointed people that also have never been to Australia. Legal Consolidated’s POAs, in all 8 Australian jurisdictions, are drafted so that there is no requirement for the person getting or receiving the POA needs to have any nexus to Australia.

When you build your Legal Consolidated POA on our law firm’s website it comes with full instructions on how to sign the POA. We also monitor and protect that POA for the rest of the attorney’s life. If the person using the POA needs help they can ring us for free advice. It is part of the cost of paying us for the POA in the first place.

But if an attorney is acting in his personal capacity, for you SMSF, isn’t that high risk for the attorney?

That is correct. Under a POA, as a trustee or director, your liability as the attorney is not controlled by the State law. It is not controlled by the attorney common law duties. Instead, you are bound by the obligations of the position to which you are personally appointed. (See SMSFR 2010/259.)

As the attorney, you replace the SMSF Trustee under the EPOA. As the new trustee, you are subject to the duties and obligations of a trustee of an SMSF. The onerous personal obligations of the old trustee now fall fully on you.

There are huge responsibility and penalties as trustee of an SMSF. See, for example, sections 52B and 52AC of the SIS Act. At the very least you should get a deed of Indemnity and Warranty.

Can my POA nominate more than one attorney for my SMSF?

Yes, your POA can appoint attorneys to act severally or jointly. The ATO’s view is that one or more of those attorneys can be appointed as an individual trustee (or director) in place of the member.

While the Enduring POA may require attorneys to act together, should one or all of them be appointed to act as trustee (or director), their decisions in that role are theirs alone and be made in the context of that role. A trustee of an SMSF acts in the best interest of all members, not just the member they feel they represent.

It may be easier to build a number of separate POAs. Each one appoints a different person. Such as one for your spouse. And another for your child.

What if the attorney is already a trustee (or director) of the SMSF?

The existing trustee wears ‘two hats’ going forward. One as a member. The other as an attorney role for the other member.

Why a specialised Legal Consolidated Power of Attorney?

The Australian Taxation Office states in SMSFR 2010/2 on how POAs operate. This is when they are used by SMSF members going overseas. (This mostly replaces SMSFR 2009/D1.)

Section 17A(3)(b)(ii) SIS Act allows the legal personal representative (LPR) of a member to be a trustee or director in place of the member. This is during any period when they hold a Specialised Enduring Power of Attorney for that member. This section applies to SMSFs.

To be effective for an SMSF the POA must:

1. Not general or common law – it must be ‘enduring’

2. Effective in the applicable State or Territory

3. Only appointing a single person to be the donor in that POA (see 17A(3)(b))

4. Four additional express powers are written into the POA for the donee to act for the member’s 1. financial 2. business 3. property affairs and 4. member’s superannuation affairs (see SMSFR 2010/2)

Why are many POAs not valid for a SMSF?

You must have legal capacity to make a POA. You must also be of sound mind. Gibbons v Wright (1954) 91 CLR 423, 438 states:

“The mental capacity required by law for any instrument is relative to the particular transaction which is being effected by means of the instrument. It may be described as the capacity to understand the nature of the transaction when it is explained. One cannot consider soundness of mind in the air, but only in relation to the facts and the subject-matter of the particular case.”

Unsure if you have mental capacity? Suffered a stroke? Suffered from depression 20 years ago? Then get a doctor’s certificate to say you are of sound mind.

Legal Consolidated Barristers & Solicitors Australia Brett Davies

Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
National Australian law firm

National:   1800 141 612
Mobile:      0477 796 959
Email:       [email protected]

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