AFCA, Compliance, Regulation

Declaration can be used as disclaimer

Disclaimer Trustee declaration statement AFCA Legal protection

Practitioners may reissue fund establishment documents to SMSF clients as a precautionary measure to protect against potential legal threats in the future.

SMSF practitioners should be incorporating disclaimers to protect themselves from potential litigation when dealing with uncooperative clients and can use the compulsory trustee declaration to serve this purpose, according to a specialist superannuation lawyer.

“When is the last time you read that statement? It is [very] good because what it does is it highlights to the client issues about the SMSF itself and about their responsibilities. Generally trustees sign it, they’ve got to keep it for 10 years and everyone forgets it the next day,” Peter Bobbin Lawyers principal Peter Bobbin told delegates at the SMSF Association National Conference 2024 in Brisbane last week.

“When you reissue it, you’re bringing it to the [client’s] attention, and when you bring it to their attention, the ethics committee of your professional association, the personal indemnity insurer and the Australian Financial Complaints Authority then see how you kept them informed and pointed them in the right direction.

“By the simple fact of reissuing that single document, you’re shifting responsibility to where it should lie, with the client, and you protect yourself.”

He urged practitioners to consider adopting this approach as a regular practice to minimise the risk of facing consequences resulting from professional complaint claims.

“Make [effective disclaimers] your standard. Issuing some of the ATO documents is a fantastic, delightfully simple strategy. These are just little systems, but I can guarantee you they work,” he stated.

“When and how often you want to do it is entirely a matter for you and a decent client will actually appreciate that.

“This is about protecting you from the rogues because they will occur and finding opportunities to continuously put this material in front of them in differing ways is what you need to be doing.

“It’s what you do now in terms of how you set yourself up that’ll determine how you come out of it.”

Copyright © SMS Magazine 2024

ABN 43 564 725 109

Benchmark Media

Site design Red Cloud Digital