Attwood Marshall Lawyers Wills and Estates Senior Associate Larisa Kapur, and Aged Care Senior Paralegal Bindy Marshall (both Accredited Aged Care Professionals) explain the often-frustrating challenges for attorneys appointed under an Enduring Power of Attorney when dealing with banks and similar institutions. They also cover the extra layer of bureaucracy facing joint attorneys and how banks are supposed to handle these documents.
An Enduring Power of Attorney gives someone legal authority to make important financial, medical, and personal decisions on behalf of another individual who may no longer have the capacity to do so themselves.
But facing rejection from a bank unwilling to recognise that authority is a familiar scenario for many attorneys. The problems compound when attorneys are appointed jointly, or when a bank applies its own interpretation of the guidelines it’s meant to follow for a customer who has lost mental capacity or for their legally appointed attorneys.
Refusal not only affects the attorney’s ability to carry out their responsibilities effectively but also impacts the individual who has entrusted them with this crucial role. It’s a frustrating, emotionally draining experience that often leaves attorneys feeling powerless and eager to find solutions, including legal proceedings or lodging complaints to the Australian Financial Complaints Authority (AFCA), against the banks.
Attwood Marshall Lawyers regularly assists attorneys who are stuck in these situations, and the roadblocks are only getting more complex. Here, we unpack the common problems attorneys face when banks won’t accept their authority, the added difficulties facing joint attorneys, and what can be done to make the process smoother.
Unravelling the obstacles banks create for attorneys
Across the board, banks approach Enduring Power of Attorney documentation differently, which can be frustrating for attorneys when getting their documents verified and accepted. For instance, while one bank may demand additional evidence or documentation, another may necessitate an entirely different set of requirements, leading to unnecessary confusion and delays.
In one recent matter, a daughter appointed as her elderly father’s attorney tried to withdraw funds to cover his medical expenses after he broke his leg and moved into a nursing home. Despite presenting a certified copy of the Enduring Power of Attorney, the bank demanded additional documentation on two separate occasions, and after those were produced, it then insisted the daughter bring her incapacitated father into the branch for in-person identification. It was an unnecessarily prolonged process while medical bills remained unpaid.
These issues often stem from bank staff misunderstanding these documents or fearing making mistakes, rather than from any deliberate obstruction.
Joint attorneys face an extra layer of bureaucracy
Where a document appoints two or more attorneys to act jointly, meaning every decision requires all attorneys to agree and act together, the major banks generally insist that all appointed attorneys attend the branch in person, at the same time, for every transaction.
This requirement barely functions when attorneys live in different states, and it becomes genuinely unworkable when one attorney is based overseas.
We recently acted as a joint attorney managing an elderly client’s finances, with us based on the Gold Coast and the other several hours away in regional New South Wales. Because the bank wouldn’t accept remote or split authorisation, invoices sat unpaid, debt collectors began contacting the family, and bills were only settled when the attorneys could arrange to visit a branch together.
Banks have tightened these requirements in response to legislative changes designed to prevent financial elder abuse. While the intent is sound, in practice, the rules leave little room for the everyday logistics of families who live apart, or for attorneys who are physically unable to attend a branch at all.
Short of one attorney formally renouncing their appointment so the other can act alone, families are often left to move the principal’s banking to an institution willing to work with joint attorneys in a practical way, sometimes opening a new account for this purpose.
Capacity, identification and supported decision-making
A related problem arises when a principal has lost some, but not all, decision-making capacity. Current legislation places a strong emphasis on supported decision-making, meaning a person should be helped to remain as independent as possible, with an attorney providing oversight rather than taking over completely.
We’ve seen cases where a bank, on learning a customer has an Enduring Power of Attorney in place, has required the principal to attend a branch and re-identify themselves, or has moved to cancel the customer’s card entirely.
For a cognitively impaired principal who still lives at home, supported by carers and using their own bank card for everyday purchases such as a coffee and cake at their favourite café, losing that independence can be genuinely distressing. And an attorney’s role is to preserve that independence, not take it away.
These blanket responses also raise a harder question: are banks making a fair assessment of the individual, or simply treating age as a red flag?
Not all banks handle this the same way
The experience isn’t universal. Some smaller and regional banks have workable systems for joint attorneys, including phone or app-based authorisation codes that let one attorney confirm a transaction the other has initiated, without both needing to attend a branch.
Some major banks have also introduced online portals for lodging Enduring Power of Attorney documentation, which can be a significant improvement on an in-branch process, even if response times still vary.
Where a family is struggling with a particular bank, it’s often worth asking whether the principal’s banking could be consolidated with an institution better set up to support joint or interstate attorneys.
When a bank won’t budge
The Australian Banking Association, an industry body distinct from the regulator, provides guidelines and a framework for banks to manage requests from attorneys and administrators consistently. A bank should assess the document’s commencement, verify the identity of the principal and attorney, and check that it has been executed and witnessed correctly. It should also check how attorneys are required to act, whether jointly, severally, or by majority, since this affects what the bank can reasonably ask of them.
It is not the bank’s role to determine whether someone has lost capacity. Banks have a contractual obligation to act in accordance with their customer’s mandate, and a properly executed Power of Attorney forms part of that mandate.
If a bank refuses to accept a properly executed Enduring Power of Attorney, or applies a requirement inconsistently, attorneys aren’t without options.
Lodging a formal complaint with the bank is the first step. If that doesn’t resolve the issue, the complaint can be escalated to the Australian Financial Complaints Authority (AFCA), the external dispute resolution body for the banking sector.
AFCA can investigate whether a bank has acted reasonably and in accordance with its own guidelines, and a documented pattern of unreasonable requests can support that complaint.
One solution is the roll out of a national register of Enduring Power of Attorney documents, which could streamline verification and reduce bureaucratic delays. A register could also help combat elder abuse by making it harder to rely on outdated or revoked documents.
Advocates for a national register have been mounting calls on the government to act for years, but no policy decisions have yet been made.
There’s also a clear case for banks to formalise remote and joint-authorisation procedures industry-wide, rather than leaving this to the individual branches’ discretion.
Tips for principals and attorneys
Professional drafting of an EPOA: Ensure your Enduring Power of Attorney is drafted by an experienced estate planning lawyer. Online templates are tempting, but these documents require specific execution requirements and legal advice, including a decision about whether attorneys should act jointly or severally.
Appointing attorneys to act severally: This allows any one attorney to act alone and can avoid many of the bureaucratic obstacles described above, though it isn’t the right structure for every family.
Seeking legal support: If you’re an attorney encountering difficulties with a bank, involving the solicitor who drafted the document can help. Lawyers are familiar with common pushback and can often resolve it faster than an attorney acting alone.
Document maintenance: Keep documents up to date and certified copies readily accessible, to avoid delays caused by outdated paperwork.
Attwood Marshall Lawyers – Leading Wills and Estates Law Firm
If you’re an attorney facing pushback from a bank or financial institution, our team can help resolve the issue, drawing on experience with the guidelines banks are meant to follow and the escalation options available when they don’t comply.
Enduring Powers of Attorney sit at the centre of the broader estate planning process, and should be considered alongside your Will to ensure your legal affairs are in order and your best interests are protected.
An estate planning lawyer can explain the extent of the document, help you draft clear instructions, including the decision-making structure your attorneys will operate under, and put in place the checks and balances needed to ensure they act in your best interests.
For assistance on Enduring Power of Attorney documentation, updating your Will, or resolving a dispute with a bank when acting as an attorney, please contact our Wills and Estates Department Manager Donna Tolley on 07 5506 8241, email dtolley@attwoodmarshall.com.au or book an appointment using our online booking app.
