Attwood Marshall Lawyers Wills and Estates Associate Larisa Kapur joins Robyn Hyland on Radio 4CRB for ‘Law Talks’ to discuss the often-frustrating challenges faced by those appointed as an attorney under an Enduring Power of Attorney when dealing with banks and similar institutions.
An Enduring Power of Attorney is a vital document that grants legal authority to someone to make important financial, medical, and personal decisions on behalf of another individual who may no longer have the capacity to do so themselves.
Despite their importance and their legal weight, these documents often lead to frustration for the attorneys tasked with managing someone else’s affairs, with common pushback coming from banks and other financial institutions.
Picture this: you’ve diligently fulfilled your duty as an attorney, only to face rejection from a bank unwilling to recognise your authority. It’s a familiar scenario for many, and the consequences can be significant.
Delays in critical financial transactions, bureaucratic mazes, and emotional exhaustion are just a few of the challenges attorneys encounter when banks refuse to accept their Power of Attorney.
This 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.
In this article, we’ll delve into the common roadblocks attorneys face when institutions won’t accept their Power of Attorney and explore strategies to overcome these challenges. Ultimately, everyone deserves the peace of mind that comes with knowing their affairs will be handled smoothly and efficiently, even in times of incapacity.
Unravelling obstacles by banks to executing powers under an Enduring Power of Attorney (EPOA)
There is a lack of consistency among banks in their procedures – a frustrating reality that has endured for years without significant improvement. In many cases, the bureaucracy has only worsened over time.
Attorneys frequently encounter difficulties during document verification and acceptance. The inconsistency across banks exacerbates the problem. 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.
Here are a few common scenarios where attorneys find themselves entangled:
Scenario 1:
An older man’s daughter, appointed as his attorney, encountered unexpected hurdles at the bank while attempting to withdraw funds to cover her father’s medical expenses.
Despite presenting a certified copy of the Enduring Power of Attorney, the bank demanded additional documentation, leading to a prolonged and frustrating process.
The backdrop to this ordeal was the dire circumstances of her father, who was in his 90s, residing in a nursing home, and rendered incapacitated after breaking his leg from a fall. The Enduring Power of Attorney, executed months before the unfortunate incident, should have provided the necessary authority for his daughter to manage his financial affairs seamlessly during such trying times. However, the reality was starkly different.
The daughter initially assumed that the bank rejected the authority because it had been certified six months before she needed to use it. So, she promptly obtained a new certified copy. Yet, this effort proved futile as the bank remained adamant and refused to accept it.
The bank demanded a Solicitor’s Certificate as proof that the Enduring Power of Attorney had not been revoked.
The daughter complied with the bank’s demands, securing the additional certification and once again presented it to the bank.
Disappointingly, it still wasn’t sufficient. The bank then demanded that the daughter bring her incapacitated father into the branch so that they could identify him. She explained his medical issues and the impracticality of the request.
Faced with the bank’s unyielding stance, the daughter was in an absurd situation. She was instructed to undergo a formal identification process as an attorney, notwithstanding her possession of valid identification credentials. Despite her earnest plea for urgency, the bank’s indifference was palpable, offering an appointment a week later to continue the identification process. This timeline was unacceptable, given that the daughter lived several hours away and was juggling pressing work commitments.
In the meantime, the father’s bills went unpaid until the daughter could resolve these issues with the bank.
Scenario 2:
In another frustrating scenario, another family found themselves entangled in the complexities of banking bureaucracy when a bank adamantly refused to accept a certified copy of an Enduring Power of Attorney. The bank demanded that the principal, now incapacitated due to dementia and residing in a nursing home, had to personally confirm the appointment of his son as his attorney by attending the branch.
As the father was not in a state to visit the bank and attest to appointing his son as his attorney, the bank then requested that the attorney present the original Enduring Power of Attorney to another branch before they would allow him to act. However, when the son returned to the branch with the original document, the staff claimed they knew nothing about this requirement. This left the son stranded in a bewildering cycle of miscommunication and bureaucratic inefficiency.
These narratives, though disheartening, underscore the urgent need for reform and compassion within banking systems to alleviate the burden on vulnerable individuals and their caregivers.
These issues often stem from a lack of understanding of these documents and a fear of making mistakes.
Depending on who you get on the day, there’s significant inconsistency in bank procedures, even within the same branch.
Guidelines for banks
The Australian Banking Association provides an industry guideline and framework for banks to manage requests from attorneys and court-appointed administrators consistently.
A bank should assess the Enduring Power of Attorney’s commencement, verify the identity of the principal and the attorney, and check that the document has been executed and witnessed correctly.
The bank should also be checking how the attorneys are to act, for example, if two attorneys must act jointly or if there are several attorneys who must act by majority.
If the document states that it comes into effect when the principal loses their decision-making capacity, a bank may request evidence, such as a medical report from a medical practitioner, to confirm the principal has lost their decision-making capacity.
It is not the bank’s role to determine if someone has lost capacity.
Banks have a contractual obligation to act in accordance with their customer’s mandate. If a customer has set up a power of attorney, then these authorities are in line with the customer’s mandate.
Despite these guidelines, there may be disparities in interpretation among different banks and branches, highlighting the need for consistency and compassion in addressing these types of sensitive matters.
Proposed solutions
Efforts have been made to advocate for a national register of Enduring Power of Attorney orders to streamline the process of verifying these documents and reducing bureaucratic hurdles.
Such a register could facilitate smoother transactions for attorneys and also help combat elder abuse.
However, its implementation remains uncertain, underscoring the importance of ongoing discussions and improvements within the system to safeguard the most vulnerable members of society.
Tips for principals and attorneys
- Professional drafting of an EPOA: First and foremost, ensuring your Enduring Power of Attorney is drafted by an experienced estate planning lawyer who knows what they are doing is essential. Attempting to create these documents on your own, while tempting with online templates being readily accessible, is ill-advised. These powerful documents require specific execution and legal advice on structuring and considerations. Not to mention there are specific clauses that need to be tailored to your unique circumstances to allow your attorneys to conduct your affairs smoothly should you not be able to.
- Seeking legal support: If you are acting as an attorney and encounter difficulties with banks or institutions, involving the solicitor who drafted the document can be extremely helpful. A solicitor’s intervention may help expedite the process – lawyers are familiar with common pushbacks and can anticipate these challenges.
- Document maintenance: Keep your documents up-to-date and ensure certified copies are readily accessible. This proactive approach ensures a smoother process, safeguarding against delays or complications in executing your intentions.
Attwood Marshall Lawyers – Leading Wills and Estates Law Firm
It is essential to obtain a thorough understanding about Enduring Power of Attorneys as part of the overall estate planning process. These documents should be considered when you draft your Will to ensure you have all your legal affairs 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 setting out the decision-making autonomy you want your attorney to be able to have, and put in place the checks and balances that are necessary to ensure your attorney will do right by you.
Attwood Marshall Lawyers have one of the largest, most experienced Wills and Estates departments in Australia, with dedicated teams who practice exclusively in estate planning, drafting Wills, Enduring Powers of Attorney, and Advanced Health Directives.
For assistance to draft an Enduring Power of Attorney, or update your Will and other estate planning documents, please contact our Wills and Estates Department Manager Donna Tolley on 07 5506 8241, email dtolley@attwoodmarshall.com.au or book an appointment with one of our estate planning lawyers instantly using our online booking app.
