Thanks for the question, Peter.

It is certainly positive that Husband has an enduring power of attorney (EPA) in place for his Wife that has early-onset dementia.

It would be advisable to request to have a copy of the EPA document provided to you.

Whilst Wife has the capacity to sign her name, the issue at hand is whether she has the capacity to understand the documents she is signing.

At the risk of oversimplification, if she does not comprehend the documents she is signing, or even if she does comprehend in the moment, but may not be able to remember that she has signed them shortly thereafter, then with regret, it might be time for her to cease signing documents in relation to the fund.

In relation to the EPA, it presumably appoints Husband as the Legal Personal Representative of Wife in relation to all matters. It would be useful to review the EPA to ensure that it is sufficiently broad to either cover all matters, or if it is narrow in its application, in relation to certain matters only, that it explicitly lists the affairs of the SMSF.

The SIS Act at subsections 17A(3)(b)(i) and (ii) certainly contemplates the Legal Personal Representative of a fund member being the trustee/director of a corporate trustee whilst the fund member is under a legal disability or whilst the fund member has a Legal Personal Representative with an EPA.

I do not think there is any need for the financial statements to make a reference to her mental state.


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