- allow the attorney to step into the director role; or
- give the attorney decision making power if they are a trustee of a discretionary trust or SMSF.
- having the company execute it own Power of Attorney and directly appoint its own attorney;
- installing an alternate director (whose power to act only takes effect upon the incapacity of the current director);
- in circumstances where an incapacitated Director is also a shareholder, have the Attorney use its votes as a shareholder to vote in a replacement director (this could be a short term fix in the case of a trustee company where a trust deed gives an appointor the right to remove and replace the current trustee).
- For a small proprietary company, in most cases the process of installing a substitute Director will be covered by a company’s constitution.
- For trustees, the trust deed itself will usually provide guidance on trustee incapacity and where it is silent on such matters, sections 48-50 of the Trustee Act (Vic) 1958 may be of assistance).
- A power of attorney seeking to allow the attorney to exercise the powers of an appointor under a trust deed should expressly specify such powers.
- A SMSF remains compliant if the legal personal representative (including an attorney) takes control of the fund during a period of incapacity of the member/trustee however the appointment must still be effective in accordance with applicable deed and regulations (see SIS Act 17A(3)(b)).
You can also find further information in our: Children and Family Law - Frequently Asked Questions, Children and Family Law, Family Law Property - Frequently Asked Questions, Family Law Property, Child Support, Divorce, Purchasing Property, Selling Property, Subdivisions, Business Sales and Acquisition, Building And Planning, Small Business, Debt Recovery, Leases and Agreements, Power of Attorney, Wills and Estates Planning, Probate and Guardianship sections.
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