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SMSF critics misunderstand trustee obligations

The SMSF Professionals’ Association of Australia has responded to criticism of SMSF trustees that they are “laws unto themselves”, stating that this could not be “further from the truth”.

SPAA technical and professional standards director Graeme Colley said critics of SMSF trustees often “fail to take into account” the legal obligations trustees have to “all fund members, not just themselves”.

“There is a common misconception that trustees are somehow a ‘law unto themselves’ but nothing could be further from the truth. Their legal responsibilities are wide-ranging and onerous, and penalties apply if they don’t comply,” Mr Colley said.

“In SPAA’s experience, trustees have largely accepted these responsibilities, showing a capacity to quickly adapt to any changes in the rules,” he said.

SPAA said that under the Superannuation Industry (Supervision) Act 1993 trustees have a legal obligation to act honestly in all matters concerning fraud.

“[They also must] exercise the same degree of care as any "ordinary person” would exercise in dealing with property of another, [and] exercise their powers and duties in the interests of beneficiaries,” a statement from SPAA said.

“In addition, trustees are obliged, among other things, to execute the terms of the trust deed; defend the trust; be impartial among beneficiaries; account for actions and keep beneficiaries informed; not delegate; not profit; and not be in a conflict of interest position,” Mr Colley said.

“Having set up their SMSFs to ensure they are self-sufficient in retirement, they understand better than anyone the importance of complying with the legislation to ensure the fund works to the benefit of all members,” Mr Colley added.