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DBA Lawyers’ SMSF governing rules features

Advantages of the DBA Lawyers SMSF deed (2021-22)

DBA Lawyers latest SMSF governing rules and related documents includes many value-added features. This article briefly explains why our SMSF documents are the best available.

Recent changes to DBA Lawyers’ SMSF governing rules

Our latest DBA Lawyers’ SMSF governing rules (version 2021-22) comes with the following upgrades:

  • expanded Trustee investment powers in respect of any ‘Non-Member Spouse Interest’ for family law super splitting purposes;
  • enhanced powers for family law splits between de facto partners in Western Australia (in view of recent legislative changes);
  • expanded Trustee powers to act as attorney for Members regarding transfers/roll-overs;
  • amended and improved provisions for withdrawal by ‘Payment Directive’ for clarity and effectiveness;
  • updated Trustee investment powers in relation to cryptocurrency;
  • improved definition to specifically allow for up to 6 members;
  • improved definitions and enhancements for clarity throughout; and
  • relevant changes for all relevant legislative, regulatory and strategic matters since our last update.

Naturally, the above upgrades are on top of the value-added features.

General features of the DBA Lawyers’ SMSF governing rules

  • Rules are up to date with superannuation law — We update our governing rules annually to cover all relevant changes (including superannuation law, case law and ATO materials).
  • Strategic rules for power to appoint and remove trustees — Members who hold more than 50% of benefits in the fund have the power to appoint and remove the trustee. Click here for more information on SMSF succession.
  • Allows for successor trustees — We provide for successor trustees (for example, a trustee’s legal personal representative (‘LPR’)) to step in as trustee on the death or loss of capacity of an existing trustee. The DBA Lawyers’ company constitution contains similar provisions for successor directors.
  • Streamlined and effective BDBN rules — Our BDBN documentation does not rely on the Superannuation Industry (Supervision) Act 1993 (Cth) (‘SISA’) or Superannuation Industry (Supervision) Regulations 1994 (Cth) (‘SISR’) provisions and provides a firm basis for making an effective BDBN. Click here for more information on BDBNs. We also provide express wording in the event there is any conflict between a reversionary nomination and a BDBN. Click here for more information. Our BDBN can be executed and witnessed via Zoom, Skype and similar technology. Moreover, given COVID-19 restrictions, from 4 May 2020 our deed empowers a BDBN to be made without any witness should this be a necessity (Click here for more information on these changes).
  • BDBN value-added template — A strategic BDBN template is provided which, among other things, allows for two levels of cascading and allows a member to make their pension automatically reversionary, overriding the pension documents as necessary.
  • Members’ wishes can be represented by attorney or executor — A member’s rights can also be exercised by the member’s LPR. Accordingly, where a member dies or is incapacitated, their LPR (eg, the member’s attorney acting under an enduring power of attorney or, following their death, the executors of the deceased’s estate) can exercise the member’s rights in the member’s place, eg, a withdrawal of benefits before a member’s death if the member has only days to live.
  • Power to admit conditional members — It is very difficult to remove a member from an SMSF once there is a falling out. Members can be admitted subject to certain trigger events that force them to exit the fund automatically. This can serve as a useful tool especially where a second spouse or children are included in an SMSF and there is a falling out. Refer to our articles entitled The advantages of conditional membership in an SMSF and Admit a conditional member.

Strategic and other advantages of the DBA Lawyers’ SMSF governing rules

  • Latest SMSF strategies and traps covered — We include the latest SMSF, tax, stamp duty and asset protection strategies in our SMSF governing rules. For example, our SMSF governing rules include protection so pension payments cannot be accessed by creditors.
  • Trustees empowered to do normally restricted things — People are regularly unaware that many common, and often necessary, SMSF trustee activities are prohibited unless the trust’s governing rules allow for this. For example, there are general prohibitions on SMSF trustees carrying on a business (eg, a property development business), being remunerated for their services, investing in a non-income producing asset or alternatively in a single bulky asset without diversification. Our governing rules empower these activities and many more commercially realistic ventures. Trustees may be sued by a disgruntled beneficiary when they suffer any loss or damage and maximum protection should therefore be sought.
  • Detailed memo and PDS — A detailed SMSF memo and PDS are included with our new SMSF and SMSF deed updates. These documents, in addition to complying with the law, can greatly assist members and trustees to understand their duties and entitlements.
  • Eligible for the Annual Update Service — For those who want peace of mind that their SMSF’s governing rules are kept up to date, we offer the Annual Update Service that provides our latest SMSF governing rules, PDS and SMSF Memo each 1 July for a small annual cost. Many advisers enjoy an added benefit from the Annual Update Service because all their SMSFs have our latest governing rules, allowing for easier administration and compliance.
  • Backed by lawyer support — Every DBA Lawyers document package is reviewed and signed-off by one of our expert SMSF lawyers. Using us for documents means you get the best review and support possible. (Many other suppliers claim they provide legal sign-off.)

DBA Lawyers’ latest and greatest deed

DBA Lawyers is recognised throughout Australia by many accounting, legal and financial planning firms as the leading SMSF document supplier. By using our Annual Update Service, you will have an up to date SMSF deed incorporating the latest legislative changes, developments and strategies.

An SMSF’s governing rules is the cornerstone that makes or breaks many SMSF strategies.

For an article on why SMSF deeds should be ordered from a law firm rather than a non-qualified supplier click here.

A new SMSF (with our governing rules) can be ordered here. An update to an existing SMSF’s deed can be ordered here.

We also offer a large range of related documents and services which complement our SMSF governing rules.

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Note: DBA Lawyers hold regular SMSF CPD training. For more details or to register, visit www.dbanetwork.com.au or call 03 9092 9400.

For more information regarding how DBA Lawyers can assist in your SMSF practice, visit

www.dbalawyers.com.au.

By Shaun Backhaus ([email protected]), Lawyer, and Daniel Butler ([email protected]), Director, DBA Lawyers

30 June 2021

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