Duties of the Trustee and the Insurer in relation to Total and Permanent Disablement Claims (TPD)
The majority of super funds have an insured component in the event of Total and Permanent Disablement (TPD); Income Protection (IP) or Death. It is worthwhile to check your last statement from your Super Fund to ascertain what entitlements are available to you; and if it has changed at all over the past few years.
The Trustee of the Fund and the Insurer who the Fund contracts with have very clear and specific duties to perform when making a decision on your entitlements.
The Trustee –
*must exercise its discretion to approve or decline any entitlement in good faith
*must give real and genuine consideration to the exercise of its decision
*its decision must be reasonable.
The Insurer –
*is not a Trustee
*has a duty to act with the utmost good faith
*before denying a claim, must give the person affected an opportunity to comment on adverse material.
*if they deny the claim, must give reasons for its decision.
It is my experience, over nearly 30 years that if a member of a Fund wishes to make a TPD or IP claim, they should see a solicitor before doing so. This is because there are varying definitions of TPD and IP throughout the different funds and if the definition is not properly addressed the Trustee and the Insurer may decline the claim.
Further, the Fund and the Insurer require medical information from treating doctors who should be informed of the legal meaning of the TPD and IP. It is my experience many are not so informed and their medical reports are of little use to the claimant, insurer and the Trustee.
Super TPD and IP benefits can involve large sums of money and by consulting your solicitor, you stand a better chance of securing your potential benefits for you and your family.
