By Rosalind Croucher AM -
Snapshot
- A significant proportion of the wealth of older people is held in superannuation funds, making it one of the potential ‘golden eggs’ for elder abuse, including the use of deception, threats or violence to coerce a person to contribute, withdraw or transfer superannuation funds for the benefit of the abuser.
- In the Elder Abuse Report, the Australian Law Reform Commission recommended review of the authority of those holding enduring powers of attorney.
- A thorough review of the key Binding Death Benefit Nomination provisions will generate coherency and clarity for an area of law that will increasingly affect older Australians, supporting them in the exercise of their wishes but also making clear the limits on the role of a person holding an enduring power of attorney.
A significant proportion of the wealth of older people is held in superannuation funds, making it one of the potential ‘golden eggs’ for elder abuse, and a target for ‘inheritance impatience’, including the use of deception, threats or violence to coerce a person to contribute, withdraw or transfer superannuation funds for the benefit of the abuser. Issues concerning binding death benefit nominations (‘BDBNs’) were one of the many topics considered by the Australian Law Reform Commission in the report, Elder Abuse—A National Legal Response (‘Elder Abuse Report’), launched by the Attorney-General, Senator the Hon George Brandis QC, on World Elder Abuse Awareness Day on 15 June. This article draws from chapter seven of the Report.
The language and types of nominations vary greatly and the expanding scope and value of superannuation means that clarity in understanding from the perspective of fund members and trustees is important. In Retail Employees Superannuation Pty Ltd v Pain [2016] SASC 121, Blue J identified problems in relation to the legislative provisions concerning BDBNs, ss 58 and 59 of the Superannuation Industry (Supervision) Act 1994 (Cth) and reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth), and suggested that it was ‘highly desirable’ that the provisions ‘be reviewed by the Commonwealth and recast’ (at [512]).
In the Elder Abuse Report, the ALRC adopts Blue J’s suggestion for a review, the recommendation to this effect including suggestions for a range of matters that should be considered. Once the review is completed, work can be done on improving the understanding of financial advisers and lawyers, as well as the information provided to superannuation fund members. One particular area of concern was the authority of those holding enduring powers of attorney (‘EPOAs’). The report discussed this somewhat vexed topic and recommended that this be a specific matter addressed in the review.
