By Jen McMillan -
Snapshot
- The scope of the authority of an enduring attorney is expressed differently in each jurisdiction.
- Re Narumon Pty Ltd [2018] QSC 185 provides some guidance as to whether an enduring attorney can make, revoke or confirm a superannuation binding death benefit nomination and may have relevance for New South Wales practitioners.
The question of whether an enduring attorney can make, revoke or confirm a superannuation binding death benefit nomination (‘BDBN’) has long been a matter of debate. The scope of the authority of an enduring attorney is expressed differently in each jurisdiction and it is only in Tasmania (where the legislation specifies that the attorney may exercise any power in respect of any superannuation) that it is clear the authority extends to making, revoking or confirming a BDBN. The recent Queensland case of Re Narumon Pty Ltd [2018] QSC 185 provides some guidance on this question and may have relevance for New South Wales practitioners.
The facts
In Re Narumon Pty Ltd [2018] QSC 185, Mr Giles was a member of a self-managed superannuation fund who had become incapable of making financial decisions. His wife and sister managed his financial affairs as his attorneys. In 2013 Mr Giles had made a BDBN directing the payment of his death benefit as to 47.5 per cent to his wife, 47.5 per cent to his son and 5 per cent to his sister. The BDBN stated that it would cease to have effect three years after the date it was signed. The BDBN was going to lapse in 2016, and there was also a problem in that the sister was not a dependant who could receive a death benefit under the superannuation legislation. Aware of these issues, in 2016 the attorneys signed two documents. One was an extension of BDBN which confirmed the 2013 BDBN and extended it for a further three years. The other document was a new BDBN excluding the non-dependant sister and nominating the member’s wife and son to each receive 50 per cent of the death benefit.
