Check up on savings

Older individuals often forget to perform checks on their retirement savings.

It is essential that individuals check that their retirement savings are on track to finance their planned standard of living in retirement. Otherwise, they could be left short when they are ready to retire.

A common time to perform these checks is in the final decade before the date of intended retirement; however, it is a good idea to perform them throughout a person’s working life.

Performing these checks can also allow an individual to focus on maximising their super in the countdown to their retirement.

Policymakers are also interested in retirement savings checks as it allows them to gain an understanding of whether Australia’s retirement savings will be adequate, or if there will be strong demand for the age pension.

Power of attorney and guardianship

As people get older they need to make arrangements on how to handle their estate, and their personal interests in the event of sickness or death.

These include:

Enduring guardianship

A guardian is essentially a legally appointed substitute decision-maker. A guardian is granted powers only as is necessary to accomplish what an individual cannot do independently.

Individuals can choose to create a legal document called an ‘enduring power of guardianship’ that authorises a person to make personal, lifestyle or treatment decisions on behalf of themselves.  A guardian can also be appointed by the courts. Unlike the power of attorney, each state has a guardianship board or tribunal which supervises the guardian.

The most common functions of a guardian are making decisions on accommodation, health care and medical and dental treatment.

Enduring power of attorney (financial)

A financial ‘enduring power of attorney’ is a legal document that remains valid if the nominator becomes mentally incompetent.  The agent who is appointed can make any legal or financial decisions on the nominator’s behalf.

The appointed attorney is able to make a decision on property or financial affairs, for example, operate bank accounts, pay bills and purchase and sell property.

Enduring power of attorney (medical treatment)

An enduring power of attorney for medical treatment authorises the agent to make decisions about an individual’s medical care and treatment. This power takes effect if, and when, the nominator becomes incapacitated, whether temporarily or permanently.

Trustee obligations of a disqualified person

There are ramifications when a trustee in a self managed super fund (SMSF) becomes a disqualified person.

An individual can become a disqualified person if any of the following conditions apply. If they:

-have been convicted of an offence involving dishonesty

-have been subject to a civil penalty order under the super laws

-are insolvent under administration

-have been disqualified by a court or regulator

A company is a disqualified person if any of the following conditions apply:

-a responsible officer of the company (such as a director, secretary, or executive officer) is a disqualified person

-a receiver, official manager, or provisional liquidator has been appointed to the company

-action has been taken to wind up the company

Under superannuation laws, if an individual becomes a disqualified person they must notify the ATO immediately of their disqualification- unless they were disqualified by the ATO- and cease being, or acting as, a trustee.

It is an offence for a disqualified person, who is aware of their status of being disqualified, to continue to be, and act, as a trustee of the SMSF.  Penalties for this can include fines and in some cases, imprisonment.

To determine whether a disqualified person can again become an individual trustee of a SMSF depends on how they were made disqualified:

Convicted of an offence involving dishonesty

An individual may apply for a declaration waiving their disqualified status within 14 days of the date of their conviction, and only if the penalty or prison term is less than stated in the legislation

Insolvent under administration

Once the individual is no longer insolvent under administration they are no longer a disqualified person

Disqualified by a court or regulator

Legislation sets out the circumstances in which an individual can request their disqualification to be revoked.

Record keeping requirements for SMSF

Poor and inadequate record keeping are often recognised as a major problem for self managed super funds (SMSF).

One responsibility of being a trustee of a SMSF is to keep proper and accurate tax and super records.

It is important to keep updated records so that they can be made available to the fund’s auditor when they audit the fund each year.  Accurate records must also be provided when requested by the ATO

Accurate records can also help trustees to manage the fund efficiently.

Attention needs to be given to record keeping as it can pose a compliance risk. Trustees of a SMSF should ensure that they remain compliant as penalties do apply for those who fail to keep accurate and accessible records for the required timeframe.

The following records must be kept for a minimum of five years:

-accurate and accessible accounting records that explain the transactions and financial position of the SMSF

-an annual operating statement and an annual statement of the SMSF’s financial position

-copies of all the SMSF annual returns lodged

-copies of any statements that are required to be lodged to the ATO or other super funds

The following records must be kept for a minimum of ten years:

-records of all changes of trustees

-trustee declarations recognising the obligations and responsibilities for any trustee, or directors of a corporate trustee, appointed after 30 June 2007

-member’s written consent to be appointed as trustees

-copies of all reports given to members

-documented decisions about storage of collectables and personal-use assets

-minutes of trustee meetings and decisions, if matters affecting the fund were discussed