No, this isn’t a case of having gone freestyle on the keyboard!!
Most of us have (or at least should have!) appointed an Enduring Power of Attorney – someone who can deal with our financial and legal matters when we are no longer capable of doing so. Most of us will appoint our spouse or children to this role.
Most of us understand that our Enduring Power of Attorney is not entitled to see or amend our Will (without the supervision of VCAT or the Courts).
Most of us have superannuation which will crystallise into the payment of a members’ death benefit when we die without having used or expended all of our superannuation.
Most of us understand that our superannuation members’ death benefit will not immediately fall into our deceased estate or be dealt with by our Will and that our members’ death benefit will be paid either to our deceased estate or to one or more of our defined dependants (eg. spouse and children) at the discretion of our superannuation trustee(s).
Most of us understand that you can direct your superannuation trustee to pay your members’ death benefit to a particular dependant or to your deceased estate by completing a Binding Death Nomination.
What many of us fail to realise is that our Enduring Power of Attorney is entitled to:
- amend, change or revoke our Binding Death Nomination
- withdraw funds from or change our superannuation investments
- contribute additional funds or assets to our superannuation fund.
Given that a Binding Death Nomination is effectively a “Will” for our superannuation entitlements, the powers reserved to your Enduring Power of Attorney clearly present an opportunity for mischief and for your Enduring Power of Attorney to disrupt your testamentary intentions.
You should think carefully about who you appoint as your Enduring Power of Attorney and should also consider limiting their power to deal or transact on your superannuation fund.