Notification to Trustee of Mental Incapacity of Member

About Product

The Notification of Change of Trustee by Mental Incapacity template is designed to ensure that the Fund can effectively manage the transition of trusteeship in the event of a member's mental incapacity. It includes a comprehensive notification letter that must be issued to the Fund's trustees, as well as a detailed record of the trustees' meeting where the change is formalised. The document aligns with clause 17A of the Superannuation Industry (Supervision) Act (SISA), facilitating the legal and seamless acknowledgment of a member's Legal Personal Representative as a replacement trustee. This ensures that the superannuation fund remains compliant with Australian law while protecting the rights and interests of all members.

► $49.00 (inc GST) - OR provided under your unlimited membership (exc ASIC fee)

► The master document has been signed off by LY Legal and is congruent with Australian law.

General Information

This template is integral for SMSFs to manage trustee transitions due to a member's mental incapacity. It provides a legal framework for notifying existing trustees and facilitating the appointment of a Legal Personal Representative (LPR) as per clause 17A of the Superannuation Industry (Supervision) Act (SISA). The document ensures that the Fund remains compliant, upholding the legal and operational standards required under Australian law. It is crucial for the proper administration of the fund, safeguarding its integrity and the interests of its members during sensitive transitions.

Benefits

Legal Compliance: Ensures the superannuation fund adheres to Australian Superannuation Law, particularly clause 17A of the SISA, during trustee transitions due to mental incapacity.
Clear Process: Provides a structured procedure for the appointment of a Legal Personal Representative as a trustee, ensuring transparency and legality.
Fund Integrity: Maintains the integrity and operational continuity of the superannuation fund by managing trustee changes efficiently and legally.
Member Protection: Safeguards the rights and interests of the incapacitated member and all fund members by ensuring a smooth transition of trusteeship

Frequently Asked Legal Questions

Who can act as a Legal Personal Representative (LPR)?

The LPR is typically the holder of the Enduring Power of Attorney (EPOA) for the member, as specified under clause 17A of the Superannuation Industry (Supervision) Act (SISA), authorised to act on behalf of the incapacitated member in managing their superannuation fund interests.

What should be done if there is a corporate trustee and a member becomes incapacitated?

When a member who serves as a director of the corporate trustee becomes incapacitated, it is essential to cancel their directorship with the Australian Securities and Investments Commission (ASIC) at the earliest opportunity. This step must be completed before using the notification to formalize the change in trusteeship, ensuring the corporate trustee remains compliant with legal requirements.

How is mental incapacity determined for the purposes of changing trustees?

Mental incapacity must be medically certified by a qualified healthcare professional, ensuring that there's a valid and recognised basis for the activation of the change of trustee process.

How long does this document take to assemble?

Depending on the complexity of the data, this document should take approximately 5-10 mins to assemble. If you experience timing outside of this please contact Support via the Surge app, alternatively please read this article for troubleshooting tips https://info.lightyeardocs.com.au/supportcentre/troubleshooting-longer-assembly-times-timeouts.

Is this document a legal document?

All master documents have been signed off by LY Legal lawyers. Tony Anamourlis of LY Legal advises that “at no time, due to inbuilt legal protection and security measures can a user change or amend a document on the LYD platform that has been signed off by a practicing solicitor. To do so would result in the user drafting a document of a legal nature and engaging in the provision of legal services.

In addition, it would be a breach of copyright. In our opinion when completing the form fields through the LYD platform, users and their employees are merely carrying out an administrative task which is not the provision of legal advice.”

However, in some complex areas such as the insertion of a varied range of client instructions into a Will or other such documents the user must be mindful of the extent to which a document is being drafted by the user rather than merely the administrative task of completing a form where the relevant fields are inserted into the reviewed and signed legal document provided by LY Legal.

The above advice is born out of numerous cases dating back to Re Sanderson, Ex parte Law Institute of Victoria [1927] VLR 394, 397 where the Court held:

“if a person does a thing usually done by a solicitor, and does it in such a way as to lead to the reasonable inference that he is a solicitor – if he combines professing to be a solicitor with action usually taken by a solicitor – I think he then does act as a solicitor.”

Likewise, in ACCC v Murray (2002) 121 FCR 428, 448 where Murray was building a franchise business that involved the legal writing and drafting of Wills from scratch based on the client’s personal circumstances. The Court held that this process was legal work.

Is the document easy to read?

All LYD products are written in plain English and assessed for readability. If at any time you come across any errors, please contact support@lyd.com.au.

What lawyers sign off on the LYD documents?

All LYD documents are prepared and signed off by LY Legal.

Are the LYD documents reviewed regularly?

All LYD documents form part of the LYD internal review process. We review all documents at least annually or when required to do so due to changes in legislation. Further details of this process and a review schedule is include on this website.