If you wanted to set up a self-managed superannuation fund (SMSF) today, would you consider it acceptable to copy a trust deed prepared more than five years ago? What if the deed referred to the Insurance and Superannuation Commission, a body that has not been in existence for more than eight years? 
 
In a modern world with constantly evolving legislative and regulatory requirements, that approach would be unlikely to result in a complying legal document. 
 
One of the benefits of using the services of businesses which supply trust deeds, shelf companies and similar documents is that concerns about the timeliness and currency of such documents are overcome (because suppliers provide documents sourced from, and maintained by, legal practitioners). The Institute’s Member Benefits Program includes one such supplier, Cleardocs. Its documents are drafted, maintained, and signed-off by the law firm Maddocks. 
 
Occasionally, members contact the Institute regarding the risk that using such services may put the accountant in breach of laws requiring work to be performed only by qualified legal practitioners.  
 
Western Australia court case 
A case in Western Australia recently highlighted these issues. The Legal Practice Board of WA brought an application against an accounting firm, Computer Accounting and Tax Pty Ltd, for contempt under section 250 of the Legal Practice Act 2003 (WA), in relation to the preparation of a SMSF trust deed.  
 
One of the two directors of the accounting firm was a registered tax agent and a Fellow of the National Tax and Accountants’ Association. Neither director was a legal practitioner. The firm advertised on its website the preparation of trust deeds for $330.  
 
In August 2006 one of the firm’s directors was asked to prepare a trust deed to set up a SMSF. In evidence to the court, the firm’s director submitted that she had obtained a pro-forma of a trust deed from an internet company “at some time in 2003”.  
 
The deed was prepared and delivered, although apparently never executed. The judgement indicates that the accountant used a three-year-old deed as the basis for the preparation of a current deed, and did not use the services of a document provider. Cleardocs, which was named in the case as the source of the pro-forma trust deed in 2003, has indicated to the Institute that:

• The accounting firm was not a Cleardocs customer at any time  
  
• The SMSF deed was not a Cleardocs deed 
  
• On the basis of a legal review by Maddocks, the deed appears to be much older than 2003. 
  
• Cleardocs was never contacted about the case by any of the WA Legal Practice Board, the accountant firm or any of the lawyers involved in the case.

• Use only reputable document providers whose services are backed by competent legal practitioners 
  
• Ensure that they abide by the terms and conditions of the document providers as to the use of the documents and their supply to clients 
  
• Avoid redrafting of documents to suit the circumstances of individual clients, unless appropriate legal advice is obtained by the relevant parties.