Member guardian provisions are generally rules set out in an SMSF trust deed that allow a member to appoint a representative to make decisions on their behalf in the event of incapacity or death.
The View Legal SMSF trust deed deliberately does not contemplate member guardian arrangements for a range of reasons including:
(a) the issues potentially addressed by a member guardian in relation to a member's benefits are replicating solutions available via use of an SMSF Living Will (for incapacity) or a BDBN or SMSF Will (on death). Having an additional separate process for appointing a member guardian creates a significant, and unnecessary, risk for dispute to arise as to what document takes priority.
(b) similarly, in relation to day to day decision making, delegating the authority to a member's legal personal representative (being an attorney under an enduring power of attorney or executor under a will) is the approach anticipated by the law.
(c) having multiple potential documents purporting to regulate the same issues also adds a significant layer of unnecessary complexity to the estate planning process. One simple example in this regard is the right to update a BDBN - who has that right and under what conditions as between an attorney and a member guardian?
(d) we are aware of situations where 3rd parties have refused to acknowledge the purported rights of a member guardian, due to the existence of (say) an enduring power of attorney leading to significant unnecessary costs (both emotional and financial).
(e) even where a member guardian document and enduring power of attorney expressly contemplate the rights under each document (which we have found is the exception rather than the rule), third parties will invariably want to explore the validity of both documents and often refuse to accept either (or both) - at a point in time where the ability to amend either document is either unavailable or significantly costly.
(f) while all of the above problems are bad outcomes for members and their SMSF advisers, they create significant upside for lawyers to be generating fees - an outcome which is entirely contrary to View's 'why' which is provide legal solutions that are for friends. In other words, if we are not part of the solution, we are part of the problem.
View works with advisers to identify what they were trying to achieve and can produce the appropriate documents accordingly - that is (for example) valid, SMSF aligned, estate planning documents. All assistance is provided on an upfront agreed scope of work and fixed pricing.