Supreme Court of Queensland confirms an attorney can enact a binding death benefit nomination

November 11, 2020

The Supreme Court of Queensland has recently confirmed the making of a binding death benefit nomination (BDBN) is a financial matter.

This decision confirms an attorney or administrator may make a superannuation death benefit nomination on behalf of a member who has lost capacity.

Introduced under recent case Re SB; Ex Parte AC [2020] QSC 139, this decision will grant attorneys appointed under an enduring power of attorney to make a BDBN of a member’s superannuation benefit.

Appointing a binding death benefit nomination ensures a member’s superannuation death benefit is distributed to the people they want to receive it. However, the issue in question was whether a BDBN is a testamentary act or a financial matter?

Director, Chris Sheath states “An attorney or an administrator can perform anything in relation to a financial matter. However, they are restricted from making any decision for financial matters that a person can lawfully make themselves including making or revoking a Will, which is referred to as a testamentary act.”

Even then, the terms of the Enduring Power of Attorney must be carefully considered, including whether to permit or restrict an attorney’s ability to make a BDBN.

In this case the Supreme Court established that the execution of a binding nomination was a financial matter, not a testamentary act.

Chris advises “What this reinforces is the importance of having a properly structured estate plan, including enduring powers of attorney in place and regularly reviewed.”

To avoid unintended consequences Chris recommends individuals review their estate plan now addressing the following four questions:

  1. Is my Will up to date (i.e. does it outline all beneficiaries, health directives etc.)?
  2. Have I appointed a power of attorney?
  3. Are my insurance policies up to date?
  4. Do I need to make a succession plan?

Here at Chris Sheath & Associates Solicitors, we have a team of highly experienced solicitors who work with clients and their extended professional team (accountants, financial planners etc.) to create holistic and practical estate plans. 

Chris is also recognised by the Queensland Law Society as an Accredited Specialist in Succession Law (Wills & Estates) and a member of the QLS Succession Law Accreditation Committee.

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