ASIC Superannuation (Consent to Pass on Costs of Providing Advice) Instrument 2021/126

The instrument rests on several discrete legal and operational concepts, each drawn from the instrument text and the statutes it references. Those concepts determine who decides, who pays, what information must be exchanged, and how consent must be recorded.

• Written consent as a gated permission: The central legal concept is that of “written consent” by a member to permit a trustee to pass on the cost of providing financial product advice in relation to that member (s 5(1)). The instrument specifies the form and content required for such consent to be valid for the purposes of the SIS Act provision it supports.

• Signature or electronic agreement: The instrument allows the written consent to be given either by physical signature or by “otherwise agreeing in writing (including electronically)” (s 5(2)). The instrument therefore recognises electronic consenting mechanisms as equivalent to a signed paper consent, so long as the document otherwise complies with the content and dating requirements.

• Dated consent and identity at signing: Each consent must “bear a date indicating when the consent was given by the member” and must include “the name of the member at the time the member signs (or otherwise agrees in writing to the terms of) the written consent” (s 5(2) and s 5(3)(a)). The instrument makes contemporaneous identity and timing elements explicit.

• Information disclosure requirements: A consent must disclose the fund’s name and contact details, the adviser/provider’s name and contact details, an explanation of why the consent is sought, the duration of the consent, the services to be provided, and the mechanics and quantum (or reasonable estimate and estimating method) of the cost being passed on (s 5(3)(b)-(h)). The instrument distinguishes two passing-on mechanisms: deducting fees from the member’s superannuation interest, and other methods of passing costs (s 5(3)(g)).

• Amounts and estimates: Where the exact amount cannot be determined, the consent must include a “reasonable estimate of the amount and an explanation of the method used to work out the estimate” (s 5(3)(h)). The instrument therefore requires both an estimate and transparency about how the estimate was calculated.

• Right to withdraw before cost is passed: The instrument compels inclusion of a statement that the member can withdraw consent “at any time before the cost is passed on to the member by contacting the fund” (s 5(3)(i)). This creates a temporal cut-off for unilateral withdrawal, tied to the operational act of passing the cost.

• Presentation requirement: The consent must be “worded and presented in a clear, concise and effective manner” (s 5(4)), which imposes a qualitative standard on formatting and language, not merely on substantive content.

• Cross‑statute definitions: The instrument uses the Corporations Act definitions for “financial product advice” (s 4), and for “ongoing fee arrangement” (s 4). Although “ongoing fee arrangement” is defined, the instrument does not itself elaborate further obligations tied expressly to recurring fee mechanics; however, the imported definitions may determine the scope of advice covered.

Each of these concepts points to operational controls and evidentiary requirements that a trustee must meet before relying on member consent to pass advice costs. The instrument creates an information-centric compliance regime rather than a pricing cap or authorisation of fee mechanisms.

The instrument affects three principal groups by name and several secondary stakeholders implicitly.

• Members of regulated superannuation funds: The direct subject of the consent requirement is a “member of a regulated superannuation fund” who is being asked to permit a trustee to pass on the cost of providing financial product advice in relation to that member (s 5(1)). Members are the cost-bearers if they give consent. The instrument imposes on trustees a requirement to obtain a specific form of written consent from those members; members must provide consent in the specified manner (signed or otherwise agreed in writing, dated) and will receive certain information when asked (s 5(2)-(4)).

• Trustees of regulated superannuation funds: The trustee(s) are the parties who seek the consent and who will effect the passing on of costs if consent is validly obtained. The instrument operates for the purposes of the SIS Act provision that permits trustees to pass costs where consent exists, so trustees must design consent processes and documentation that comply with s 5’s content and presentation requirements. Trustees therefore carry the compliance burden of ensuring that consent documents include the items in s 5(3) and are presented in the manner required by s 5(4).

• Providers of financial product advice: The consent must identify “the person who, at the time the member signs (or otherwise agrees in writing to the terms of) the written consent, is to be the provider of the financial product advice” and provide that person’s contact details (s 5(3)(c)). Advice providers will be identified on consent forms, and any change in the provider after consent is given may raise practical questions that the instrument does not address explicitly. The instrument therefore affects adviser naming and disclosure practices.

Secondary and implied stakeholders include:

• Members’ superannuation interests: If the cost is to be passed on by deducting fees from the member’s superannuation interest, the consent must identify which interest is affected and the fee amount or estimate (s 5(3)(g)(i) and s 5(3)(h)(i)). This means individual account balances within a fund are implicated by the consent.

• Administrators and recordkeepers: The practical requirements of dated, signed or electronically-agreed consents, and the requirement to present information clearly and to record the method used to estimate fees (where applicable), impose recordkeeping, timestamping and document-retention obligations on administrators.

• Regulators: ASIC, as the instrument-maker, and the regulatory framework under the SIS Act are implicated. The instrument specifies the information regulators can expect to be disclosed if consent is relied upon, which in turn shapes supervisory assessment and compliance expectations.

• Legal advisers and compliance teams: Firms advising trustees and providers will need to review consent documentation to ensure it meets s 5’s checklist and presentation standard.

The scope of who is affected is narrow in subject matter , consents to pass on advice costs , but broad in operational touch points, because the instrument governs the exact information flow and evidentiary form that trustees, members and advisers must use before costs can be passed on under the SIS Act.

The instrument creates a set of discrete duties to be performed by trustees and corresponding rights for members as the conditional cost-bearers. These stem directly from the wording of s 5 and the definitions in s 4.

Duties (trustees, and by delegation administrators/recordkeepers)

• Obtain a written consent that complies with s 5 before passing on the cost of providing advice to a member (s 5(1)-(2)). The trustee must ensure the form is signed or otherwise agreed in writing, including electronically, and that it bears a date indicating when consent was given (s 5(2)).

• Include all specified content in the consent (s 5(3)). Concretely trustees must ensure the consent contains: the member’s name at signing (s 5(3)(a)); fund name and contact details (s 5(3)(b)); the identity and contact details of the advice provider current at the time of signing (s 5(3)(c)); an explanation of why consent is sought (s 5(3)(d)); the duration of the consent (s 5(3)(e)); the services to which the member will be entitled (s 5(3)(f)); details of how the cost is to be passed on, including which superannuation interest is affected where deduction is to be used (s 5(3)(g)); the amount or a reasonable estimate plus an explanation of the estimating method (s 5(3)(h)); and the withdrawal statement (s 5(3)(i)).

• Present the consent “worded and presented in a clear, concise and effective manner” (s 5(4)). This is a qualitative duty that requires trustees to consider wording, layout and communication clarity so that members can understand the consent.

• Where fees are to be deducted from a member’s superannuation interest, identify the interest affected and disclose the fee amount or estimate and method (s 5(3)(g)(i), s 5(3)(h)(i)).

Rights (members)

• The right to receive the prescribed information before consenting: members are entitled to the specific content listed in s 5(3) before their written consent can be treated as valid.

• The right to withdraw consent at any time before the cost is passed on, by contacting the fund (s 5(3)(i)). The instrument sets a clear temporal limit tied to “before the cost is passed on to the member”.

• The right to have the consent presented in a clear, concise and effective manner (s 5(4)). This is a qualitative right to understand the consent’s content and implications.

Other operational duties and implications

• Recordkeeping and evidentiary duties follow from the requirement for dated written consent and the possibility of electronic agreements (s 5(2)). Trustees must retain evidence that consent was given and when, and that the content met the s 5(3) checklist.

• Where amounts cannot be determined at the time of consent, trustees must record not only the reasonable estimate provided to the member but also the method used to derive that estimate (s 5(3)(h)). That creates an audit trail requirement and a duty of transparent estimation.

• Trustees must ensure the consent names the adviser who “at the time” of signing is to provide the advice (s 5(3)(c)). This ties the consent to a specific provider and moment in time.

The instrument does not itself impose monetary penalties or additional fiduciary duties; it prescribes conditions of valid consent. The practical consequence of non-compliance is that the trustee cannot rely on the consent described in s 5 for the purposes of passing on costs under the SIS Act provision the instrument supports.

The instrument itself contains no express penalty provisions, civil remedies or enforcement procedure language. It is an ASIC legislative instrument made under subsection 99FA(2) of the SIS Act (s 3), and it specifies requirements “for the purposes of” subparagraph 99FA(1)(d)(ii) of the SIS Act (s 5(1)). The instrument therefore operates as a subordinate rule-setting device rather than as a standalone enforcement statute.

Consequences and enforcement avenues that follow from the instrument, as evident from the text, are indirect rather than stated. Those consequences include:

• Invalidity of consent for statutory purpose: The instrument defines the form of written consent that must be given “for the purposes of” the SIS Act subparagraph identified (s 5(1)). If a trustee seeks to pass on costs without a consent that complies with s 5, the trustee would lack the prescribed statutory consent machinery that the SIS Act provision contemplates. The instrument itself does not specify the remedy, but the logical legal consequence is that the trustee would not be able to rely on the consent as meeting the statutory condition.

• Administrative and regulatory oversight: ASIC is the instrument-maker and regulator within the system. While the instrument does not state enforcement powers, regulatory oversight of compliance with the SIS Act and related instruments falls within the statutory regulatory framework. The instrument therefore provides benchmarks that ASIC and other supervisory bodies can use in assessing compliance, although the instrument itself does not prescribe enforcement steps or penalties.

• Contractual and equitable disputes: The instrument’s requirements (for example, the need for a clear estimate and explanation of the estimating method (s 5(3)(h)), and the presentation standard (s 5(4))) create potential bases for contractual or equitable disputes if members allege non-compliance. The instrument does not identify dispute resolution fora or sanctions, but the content requirements create evidentiary standards that courts or tribunals would likely examine in any dispute about whether consent was validly obtained.

• Operational consequences: Non-compliant consents may not effect the intended deduction from a member’s superannuation interest. That operational effect can be material for fund accounting and transaction processing, but the instrument itself does not prescribe corrective mechanisms.

In short, the instrument prescribes content and presentation requirements and imports legal meaning from the SIS Act. It does not itself attach penalties or administrative sanctions; enforcement and remedies would have to be sought under the SIS Act, general administrative law, contractual law, or through regulator action within the statutory enforcement regime referenced by the enabling provision. The instrument creates objective compliance markers (what must be disclosed and how) that can be relied upon when assessing whether a trustee acted within the statutory framework.

The instrument is explicitly tethered to the SIS Act and imports definitions from the Corporations Act, so its operation must be read in that statutory context. The instrument’s interactions are procedural and definitional rather than substantive.

Statutory nexus with the SIS Act

• Enabling provision and purpose: The instrument is made under subsection 99FA(2) of the SIS Act (s 3). Section 5(1) states the requirements are specified “for the purposes of subparagraph 99FA(1)(d)(ii) of the SIS Act” in relation to giving written consent to permit the trustee/s to pass the cost of providing financial product advice to a member. That means the instrument specifies the form of consent required to meet a statutory condition in the SIS Act; it does not create or alter the trustee’s substantive powers outside that statutory framework.

• Effect on trustee powers: The instrument does not itself enlarge or reduce the trustee’s substantive statutory duties under the SIS Act. Instead it prescribes the documentary and disclosure standard the SIS Act’s consent condition requires. Practically, trustees must comply with the instrument when relying on consent under the SIS Act; failure to meet the instrument’s requirements will affect the trustee’s ability to rely on the consent for SIS Act purposes.

Imported Corporations Act definitions

• “Financial product advice”: The instrument defines “financial product advice” by reference to section 766B of the Corporations Act 2001 (s 4). That cross-reference determines what kinds of advice fall within the instrument’s compass. Advice that meets the Corporations Act definition is the subject of the consent regime in this instrument.

• “Ongoing fee arrangement”: The instrument imports the meaning of “ongoing fee arrangement” from s 962A of the Corporations Act (s 4). Although the instrument does not otherwise elaborate on ongoing fee arrangements, that definition may matter operationally if trustees seek to pass ongoing fees, because the Corporations Act definition will determine whether the advice and fee structure qualify as an ongoing arrangement for related regulatory purposes.

Subsidiary/subordinate instrument character

• The instrument is a legislative instrument and forms part of the subordinate law framework that operates under the SIS Act. It therefore interacts with compliance, supervisory and enforcement mechanisms in the broader statutory ecosystem.

Operational and administrative intersections

• Superannuation interest deduction: The instrument requires identification of the interest from which fees will be deducted where fees are to be passed this way (s 5(3)(g)(i)). That intersects operationally with fund rules and any SIS Act provisions that regulate deductions from members’ interests. The instrument does not itself alter those deduction rules; it requires disclosure of which interest is to be debited.

• Electronic transactions and signatures: By permitting “otherwise agreeing in writing (including electronically)” (s 5(2)), the instrument interacts with any applicable laws and standards for electronic signatures, communications and record-keeping. Trustees must ensure that electronic consent mechanisms satisfy relevant legal standards, but the instrument itself does not specify which electronic authentication or recordkeeping standard must be used.

Limitations of interaction stated in the instrument

• The instrument is narrowly framed and does not purport to displace or augment other statutory duties or consumer law protections beyond prescribing the content and presentation of consent. It is silent about penalties, direct enforcement mechanisms, or any interaction with other disclosure regimes beyond the imports from the Corporations Act.

In summary, the instrument operates as a procedural and definitional adjunct to the SIS Act, with definitional reach into the Corporations Act. Trustees must apply the instrument’s content standards within the broader statutory and operational framework that governs superannuation funds and financial advice.

The instrument’s compilation includes an instrument history and an amendment history in the endnotes. The compilation as provided in this text reflects the instrument as in force on 29 June 2023.

Instrument history (Endnote 1)

• Instrument 2021/126: Registered 24 March 2021, commenced 1 July 2021. This is the primary instrument number and commencement date for the original instrument (Endnote 1 table).

• Instrument 2023/512: Registered 28 June 2023, commenced 29 June 2023. The compilation notes that this amending instrument affected the legislative instrument to the date of compilation (Endnote 1 table).

Amendment history (Endnote 2)

• The Endnote 2 table records that Section 2 was repealed (noting “Section 2 rep. s48D LA”), although the instrument as compiled does not contain a section 2. The table identifies that Section 5(3)(a) and Section 5(3)(c) were amended by 2023/512 (Endnote 2). The endnote uses the shorthand “am. 2023/512” to indicate the amendments to those subparagraphs.

• The endnotes include the usual editors’ abbreviations and note that additions and amendments have taken place; no other sections are listed as amended in Endnote 2.

Interpretation and operational import

• The instrument’s core operative provision is s 5, and the endnote indicates targeted amendments to the content items required in the consent (s 5(3)(a) and (c)). Although the compilation does not set out the prior text, the endnote’s record signals that the member-name provision (s 5(3)(a)) and the adviser/provider identification provision (s 5(3)(c)) were changed as at 29 June 2023.

• The instrument’s commencement dates show an initial commencement in mid‑2021 and an amendment with commencement in late June 2023. Administrators, trustees and advisers must therefore ensure they are using the text as current at or after 29 June 2023 when preparing consent forms.

• The amendment history does not indicate widespread structural changes; the recorded amendments are to subparts of the consent-content list. That implies the instrument’s framework and most obligations remained substantively the same, with fine-tuning to the specified information that must be included.

Practical note for compliance teams

• Where consent templates and electronic consenting platforms were deployed between 1 July 2021 and 29 June 2023, trustees should verify that their forms reflect the post-amendment wording of s 5(3)(a) and s 5(3)(c) and ensure that the member-name and provider-identification elements comply with the amended text. The endnotes provide the amending instrument number and dates for verification and record-keeping purposes (Endnote 1 and Endnote 2).

• The compilation’s endnotes provide the minimal metadata necessary to track modifications; trustees should consult the registered instruments 2021/126 and 2023/512 directly for the full amendment texts and any transitional or saving provisions if they require the precise prior wording and change history.

The instrument compilation and its endnotes do not record any case law or litigation decisions concerning the instrument. The source document contains no entries under a litigation history heading and names no cases or tribunal decisions. Therefore the instrument, as compiled, presents no recorded litigation history in this text.

Although the source lists no cases, the instrument’s expressed requirements generate identifiable legal points that could, in practice, be the subject of dispute or litigation. Those points are grounded in the instrument text and are potential loci for contestation:

• Validity of electronic consent: The instrument permits “otherwise agreeing in writing (including electronically)” (s 5(2)). Disputes could arise about whether a particular electronic method constitutes written agreement, whether the date borne is contemporaneous, and whether the evidence of identity meets legal standards. The instrument itself does not define what electronic authentication is sufficient.

• Timing of withdrawal and the meaning of “before the cost is passed on”: The instrument allows the member to withdraw consent at any time before the cost is passed on by contacting the fund (s 5(3)(i)). Litigation could turn on when, in accounting or systems terms, a cost is “passed on” and whether that occurred before a withdrawal communication was received or processed.

• “Clear, concise and effective” presentation standard: The qualitative requirement in s 5(4) invites interpretive questions about what presentation meets that standard in particular circumstances. Complaints or disputes may focus on whether an individual consent document was sufficiently clear for a reasonable member.

• Adequacy of estimates and transparency of estimating method: Where the exact amount cannot be determined, the consent must contain a reasonable estimate and an explanation of the method used to work out the estimate (s 5(3)(h)). Disputes may concern whether the estimate was reasonable, whether the method’s disclosure was sufficiently informative, and whether the eventual charged amount was reasonably within the disclosed estimate.

• Identification of the provider “at the time” of signing: The requirement that the consent include the person who “at the time the member signs” is to be the provider (s 5(3)(c)) may generate issues if the adviser changes before the advice is provided or if the adviser’s role is unclear.

None of these points are litigated or decided in the source. The headings above identify plausible legal friction points that follow from the instrument’s text; they are not records of cases and do not assert that litigation has occurred.

For practitioners preparing for or advising on potential disputes, the instrument supplies the textual hooks they would use to frame legal argument or administrative review, including the explicit statutory language on timing, content, presentation and the cross-references to the Corporations Act definitions.

The instrument is short and highly prescriptive; the operational “gotchas” flow from mandatory inclusions, qualitative presentation obligations, timing triggers and cross‑statute definitions. The following are concrete pitfalls to watch for, each grounded in the instrument text.

1. Member name must be the name “at the time” of signing (s 5(3)(a))

• The consent must include “the name of the member at the time the member signs (or otherwise agrees in writing to the terms of) the written consent” (s 5(3)(a)). Using an outdated name or a name that is discrepant from the member’s recorded name at signing may create a defect in the consent. Trustees should ensure automatic population of the current name in electronic forms and manual checks where paper signing is used.

2. Date is mandatory and material (s 5(2))

• The consent must “bear a date indicating when the consent was given by the member.” Missing or ambiguous dates will fail the instrument’s requirements. Electronic systems must capture and retain a reliable timestamp.

3. “Otherwise agreeing in writing (including electronically)” is not self-defining (s 5(2))

• The instrument accepts electronic agreement but does not prescribe authentication, identity verification, or retention standards. Trustees must decide which electronic methods they will accept and document those choices; inadequate authentication may lead to disputes over whether consent was truly “given.”

4. Provider identification must be contemporaneous (s 5(3)(c))

• The consent must state the name and contact details of the person who, at the time of signing, is to be the provider. Changing adviser arrangements after signing could raise validity questions. Trustees should plan for adviser changes and consider whether new consents are required when the provider named in the consent is no longer to provide the advice.

5. Dichotomy between deduction from superannuation interest and other methods (s 5(3)(g))

• The instrument requires different disclosures depending on whether costs are passed by deduction from the member’s superannuation interest or by other means (s 5(3)(g)). Using a generic or ambiguous description risks non-compliance. Where deduction is the mechanism, the specific interest must be identified.

6. Estimates require a method explanation (s 5(3)(h))

• If the final amount cannot be determined at the time of consent, the consent must include a “reasonable estimate” and “an explanation of the method used to work out the estimate.” A bare number or an unexplained estimate is insufficient; trustees must document and be able to justify the estimating approach.

7. Withdrawal mechanism is narrowly specified (s 5(3)(i))

• The instrument requires a statement that the member can withdraw consent “at any time before the cost is passed on to the member by contacting the fund.” The method specified is “contacting the fund.” Trustees should ensure they can reliably capture withdrawal communications, have clear operational cut-off points for when the cost is regarded as passed on, and communicate withdrawal channels to members unambiguously.

8. Presentation standard is qualitative and potentially subjective (s 5(4))

• The “clear, concise and effective” wording and presentation requirement is not quantified. Trustees must make judgment calls on layout, plain language, font size and ordering of information. Poorly designed forms may be legally defective even where the required information is present, if the form is not effectively presented.

9. Cross-references to Corporations Act definitions can change scope (s 4)

• The instrument defines “financial product advice” by reference to s 766B of the Corporations Act and defines “ongoing fee arrangement” by reference to s 962A. Changes to those definitions in future amendments to the Corporations Act will affect the scope of the instrument without changing the instrument text. Trustees need to monitor changes in the Corporations Act.

10. Record retention and reconciliation burdens

• The combination of mandatory dating, presentation, estimate-method disclosure and withdrawal rights creates a recordkeeping and reconciliation task. Trustees must have systems to match consents to subsequent fee pass-on transactions and to audit that fees charged were within disclosed estimates or otherwise properly authorised.

11. No penalties in the instrument , but operational and legal exposure remains

• The instrument does not state penalties, which could tempt shortcuts. However, non-compliant consents will not meet the SIS Act predicate for passing on costs (s 5(1)), potentially leaving trustees unable to debit member accounts and exposed to compliance queries. Trustees should not assume absence of express penalties equals absence of risk.

12. Amendment traps

• The endnotes show amendments to s 5(3)(a) and s 5(3)(c) as at 29 June 2023 (Endnote 2). Using pre-amendment templates or legacy language risks non-compliance with the current text.

These are concrete procedural, evidential and operational pitfalls that stem directly from reading the instrument’s provisions. They suggest where trustees and their administrators should focus controls, testing and documentation to ensure consents are valid and defensible.

Compliance requires operationalising the instrument’s checklist, embedding presentation standards, and implementing recordkeeping and withdrawal processes that match the instrument’s timing elements. The following practical compliance checklist and operational steps are grounded in the instrument’s text (primarily s 5(2)-(4) and s 4).

Document content checklist (must be present in every written consent)

• Member name: Include “the name of the member at the time the member signs (or otherwise agrees in writing to the terms of) the written consent” (s 5(3)(a)). Ensure automatic name population from the fund’s member record and verify prior to finalising the consent.

• Fund name and contact details: Include full fund name and reliable contact points for queries (s 5(3)(b)).

• Provider identification: Include the name and contact details of the person who, at the time of signing, will be the provider of the financial product advice (s 5(3)(c)). Ensure contemporaneous accuracy and a process for re-consenting if the provider changes.

• Purpose explanation: Provide an explanation of why the member’s consent is being sought (s 5(3)(d)). Be explicit whether consent is sought to pass the cost of initial advice, ongoing advice, or both.

• Duration: Specify how long the consent will last, in clearly stated terms (dates or conditions) (s 5(3)(e)).

• Services entitlement: Describe the services the member will be entitled to receive under the arrangement, including scope and limits (s 5(3)(f)).

• Mechanism of passing cost: State clearly whether the cost will be passed on by deducting fees from the member’s superannuation interest or by another method (s 5(3)(g)). If by deduction, identify the specific interest affected (s 5(3)(g)(i)).

• Amount or estimate and method: Where the fee amount is known, state the amount (s 5(3)(h)). Where it cannot be determined, provide a reasonable estimate and an explanation of the method used to calculate the estimate (s 5(3)(h)). Document the estimation methodology internally and retain supporting calculations.

• Withdrawal statement: Include the statement that the member can withdraw consent at any time before the cost is passed on by contacting the fund (s 5(3)(i)). Specify the contact channels and processes to effect withdrawal.

• Date and signature/electronic agreement: Ensure the consent bears a date indicating when the consent was given, and capture a signature or an equivalent electronic agreement (s 5(2)). Electronic consents must capture metadata (timestamp, IP address or equivalent) to evidence the “date indicating when the consent was given.”

Presentation and language

• Present the consent “worded and presented in a clear, concise and effective manner” (s 5(4)). Use plain language, short paragraphs, clear headings matching the s 5(3) items, and a simple layout. Consider user testing with representative members to ensure comprehension.

• Key facts should be highlighted near the top (provider name, how cost is passed, amount or estimate, and the withdrawal procedure). The qualitative standard requires trustees to consider not just content but how the content is communicated.

Operational controls and system requirements

• Electronic consent platform: If using electronic consenting, implement secure authentication and evidence capture. Capture the member’s declaration, timestamp, device and IP metadata, and store the signed document as an immutable record. Ensure retention policies align with statutory and internal recordkeeping rules.

• Version control and amendment monitoring: Maintain version control for consent templates and update templates promptly following legislative amendments (for example, the 2023 amendments to s 5(3)(a) and (c)). Record the instrument numbers and commencement dates in compliance documentation (see Endnote 1).

• Estimation methodology documentation: Where estimates are used, maintain an internal methodology document that explains how estimates are calculated, the assumptions used and a conservative approach to avoid systematic underestimation. Retain supporting calculations to respond to member queries or audits.

• Reconciliation and timing controls: Implement procedures to determine precisely when a cost is “passed on” for purposes of the withdrawal right. This should include cut-off times, batching processes for deductions, and communication handles to ensure withdrawals received before passing-on are honoured.

• Adviser change procedures: Put in place processes to re-seek consent if the named adviser/provider changes before advice is provided, or to notify members if a named provider will not provide the advice and to document whether a fresh consent is required.

• Training and workflows: Ensure staff handling consents and withdrawals are trained on the instrument’s requirements, including the withdrawal mechanics and the need to record dates and supporter evidence.

Audit, monitoring and remediation

• Periodic audits: Conduct audits of consent forms to check for required elements, presentation quality, timestamp accuracy, and consistency between disclosed estimates and actual amounts charged.

• Remediation policies: Establish remediation rules if a consent is found non-compliant post-charge. Since the instrument does not set penalties, remediation may include refunding charges, rectifying member accounts, and notifying members of the error in line with internal complaints handling and regulatory expectations.

• Complaints handling and escalation: Ensure the fund’s complaints handling procedures cover disputes arising from consent matters, including queries about estimates, adviser identity and the timing of consent withdrawal.

Regulatory liaison and documentation

• Keep records of the version of the instrument being relied upon and the amending instruments (2021/126 and 2023/512) for audit trails (Endnote 1 and Endnote 2).

• Prepare standardised consent packets and an internal compliance memorandum explaining how each s 5(3) item is satisfied in the template.

Practical drafting tips

• Use headings that mirror the instrument’s subparagraph letters, so each required item can be readily identified and audited.

• For the estimate method, include an example calculation and a short plain-language summary of the approach to increase transparency and reduce member confusion.

• For electronic consents, include a one-click confirmation with a direct link to a printable PDF of the consent containing all s 5(3) items and the timestamp.

Following these concrete steps will align trustee practice with the instrument’s content and presentation requirements, reduce operational risk, and create defensible audit trails should questions arise.