Show download pdf controls
  • Appoint your trustees or directors

    All members of a self-managed super fund (SMSF) must be individual trustees or directors of the corporate trustee. If you are not eligible to be a trustee or director, you cannot be a member of an SMSF.

    New funds usually appoint trustees or directors under the fund’s trust deed.

    You need to ensure that the people who become trustees or directors of the SMSF:

    All trustees and directors must:

    • consent in writing to their appointment
    • sign the Trustee declaration stating they understand their responsibilities (this must be done within 21 days of becoming a trustee or director).

    You must keep these documents on file for the life of the SMSF and for 10 years after the SMSF winds up.

    We may impose penalties if you don't comply. All trustees and directors are bound by the trust deed and are equally responsible if its rules aren’t followed.

    On this page:

    Media: Trustee declaration
    http://tv.ato.gov.au/ato-tv/media?v=bd1bdiubfi93w5External Link (Duration: 02:23)

    Ensure members are eligible to be trustees or directors

    All members of the fund must be individual trustees or directors of the corporate trustee, so make sure they're eligible.

    Anyone 18 years old or over can be a trustee or director of a super fund as long as they're not under a legal disability (such as mental incapacity) or a disqualified person.

    To knowingly act as a trustee, a trustee director or an office holder of a corporate trustee (such as secretary), while being a disqualified person, is an offence.

    To be sure you are not a disqualified person you need to be able to answer no to all of the following questions.

    Disqualified person checklist

    Checklist

    Yes or No

    Have you ever been convicted of a dishonest offence, in any state, territory or a foreign country?

    Offences of a dishonest conduct are things such as fraud, theft, illegal activity or dealings. These convictions are for offences that occurred at any time, including convictions that have been ‘spent’ and those that the court has not recorded, due to age or first offender.

    Yes or No

    Have you ever been issued with a civil penalty order?

    Civil penalty orders are imposed when an individual contravenes a civil penalty provision, this can be an order to pay a fine or serve jail time.

    Yes or No

    Are you currently bankrupt or insolvent under administration?

    You cannot be a trustee of an SMSF while you are an undischarged bankrupt, you cannot remain a trustee if you become bankrupt or insolvent after you are appointed.

    Yes or No

    Have you been previously disqualified by the ATO or APRA?

    The commissioner of taxation as regulator can disqualify a trustee, this disqualification is permanent and is not just specific to the SMSF you were a trustee of at the time.

    The Federal Court can make an order to disqualify a trustee of an APRA fund. This is permanent and this disqualification does not allow you to operate an SMSF.

    Yes or No

    Applying to waive disqualified status

    You can apply for a waiver of disqualified status if the offence leading to the disqualification was not an offence involving serious dishonest conduct - that is, the penalty imposed for the offence was not a term of imprisonment for more than two years, or a fine of more than 120 penalty units.

    The application must be in writing. It must include details of the offence, court documents about the offence and give consent for us to inquire about the offence to any law enforcement agencies or courts that we think are relevant.

    The application should be made within 14 days of the conviction, but we will accept application after this time if you include the circumstances about why you are applying after this time.  You cannot become a trustee until we notify you of our acceptance to waive the disqualified status. You can send your signed application and supporting documents to:

    PO Box 3100, Penrith NSW 2740.

    You can check our Disqualified trustees register (XLXS, 245KB)This link will download a file to see if an individual has previously been disqualified by us. The register:

    • provides information already publicly available in the Government Notices GazetteExternal Link, with added search functionality to help you search easily and determine if a potential trustee has been disqualified
    • is updated quarterly and includes all individuals who have been disqualified by us since 2012 when this information was first published electronically.

    A company can't be a corporate trustee if:

    • a director or other responsible officer of the company (such as a secretary or executive officer) is a disqualified person
    • the company has been deregistered by ASIC
    • a receiver, official manager or provisional liquidator has been appointed to the company
    • action has started to wind up the company.

    Members under 18 years old can't be a trustee or director but a parent, guardian or legal personal representative can be a trustee or director on their behalf.

    What it means to be a trustee or director

    Whether you're a trustee or director of a corporate trustee, you're responsible for running the fund and making decisions that affect the retirement interests of each fund member, including yourself. As a trustee or director, you must:

    • act honestly in all matters concerning the fund
    • act in the best interests of all fund members when you make decisions
    • manage the fund separately from your own superannuation affairs
    • know, understand and meet your responsibilities and obligations
    • ensure that the SMSF complies with the laws that apply to it.

    All trustees and directors are equally responsible for managing the fund and making decisions – you're responsible for decisions made by other trustees even if you're not actively involved in making the decision.

    You can appoint other people to help you or provide services to your fund (for example, an accountant, administrator, tax agent or financial planner). However, the ultimate responsibility and accountability for the SMSF’s actions lie with you, as trustee or director.

    As an individual trustee or director of a corporate trustee, you may be personally liable to pay an administrative penalty if certain laws relating to SMSFs are not followed.

    Other members of the fund can take action against you if you don't follow the terms of the trust deed. Any fund member who suffers loss or damage because of a breach of any trustee duties may sue any person involved in the breach.

    See also:

    Legal personal representatives

    A legal personal representative can be:

    • the executor of the will or the administrator of the estate of a deceased person
    • the trustee of the estate of a person under a legal disability or a minor
    • a person who holds enduring power of attorney to act on behalf of another person (see also SMSF ruling 2010/2).

    A legal personal representative can act as a trustee or director of a corporate trustee, on behalf of:

    • a deceased member, until the death benefit becomes payable
    • a member under a legal disability
    • a minor (a parent or guardian can also act as a trustee on behalf of a minor).

    A legal personal representative can't act as a trustee on behalf of a disqualified person, such as an undischarged bankrupt.

    A legal personal representative does not include a registered tax agent or an accountant unless they meet the definition above.

    Trustee declaration

    The Trustee declaration is signed by trustees and directors of a corporate trustee of an SMSF to declare they understand their obligations and responsibilities.

    Read the Trustee declaration carefully. If you don't understand any of the responsibilities then you should find out about them before signing the declaration.

    To find out more, speak to a professional adviser or contact us on 13 10 20.

    See also:

    Note: You must keep your completed declaration for the life of the SMSF and for at least 10 years after your SMSF winds up. Do not send your completed declaration to us unless we ask for it.

    How to obtain this form

    The form Trustee declaration (NAT 71089, PDF, 228 KB)This link will download a file can be downloaded in Portable Document Format (PDF).

    Who should complete this declaration

    You must complete this declaration if you become a trustee or the director of a corporate trustee of a new SMSF or of an existing SMSF.

    This declaration must be signed within 21 days of becoming a trustee or director.

    A separate declaration is required to be completed and signed by each and every trustee or director.

    You must also complete this declaration if you:

    • have undertaken an ATO approved course of education to comply with an education direction
    • are a legal personal representative who has been appointed as a trustee or director on behalf of a:    
      • member who is under a legal disability (usually a member under 18 years old)
      • member for whom you hold an enduring power of attorney
      • deceased member.
       

    Next step:

    Last modified: 15 Nov 2019QC 23314