Trust the law – where your power as a trustee comes from

SMSF technical expert and columnist for The Australian newspaper
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As I mentioned last week, a trust, such as a super fund, isn’t a legal entity – the trustee is the legal entity. A trustee’s powers don’t arise as a matter of course (unlike natural persons or companies, which are given the powers of a natural person at law). Rather, the trustee’s powers may only be derived through several sources: the Courts; by legislation; and by the trust deed. If the trustee undertakes an action that isn’t permitted by one of those sources of power, the trustee is in breach of trust.

In reality, it’s impractical for a court to continually confer powers on a trustee.

Also, while the relevant State and Territory trustee legislation certainly confers powers on a trustee, many superannuation powers aren’t within their scope.

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