A lawyer specialising in the superannuation sector has warned practitioners to be fully committed to providing estate planning services to avoid legal action from clients regarding the matter.
“Let’s just say you decide [providing estate planning services] isn’t for me in the next quarter or the next year or our firm ever and this is not a place we want to be. That’s fine, but be aware the way the court cases seem to be coming down in this is that if you are doing part of the advice in this space, and SMSF advice is the classic example, there is increasing literature to suggest you can’t just get yourself off risk by saying I’m not advising on that,” View Legal director Matthew Burgess told attendees of a recent technical webinar hosted by Accurium.
“And you’ve got to be particularly careful if your website says we do estate planning if you’re not actually facilitating that and making it happen.”
Further, Burgess recommended advisers not to fall into the practice of providing estate planning documents they have prepared themselves.
“[Generating] legal documents yourself is something that I suspect your licensee or the head of your organisation, quite aside from the professional bodies, [considers] a very high-risk area,” he noted.
“[If you’re] churning out templated BDBNs (binding death benefit nominations), many examples that have gone through the court … each of them, without a lot of subtleness, have called into question the role of the adviser where they have raised an idea but failed to see it actually delivered on, and in many instances have discoursed over the fact the non-legally qualified person may have been providing the legal documentation.”
According to Burgess, there are plenty of other areas advisers can add value with regard to estate planning and it makes no sense to increase their practice risk by producing legal documents often to save the client an insignificant amount of expense.
“So if you’re not going to embrace [estate planning to the level that is required], please make sure that you’ve done everything you need to do to be 100 per cent off risk,” he noted.
