6.112 Banking is another area of Commonwealth legislative responsibility, in relation to which the application of the decision-making model might be considered.
6.113 Article 12(5) of the CRPD requires States Parties to take all appropriate and effective measures to ensure the equal right of persons with disabilities to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit.
6.114 In practice, a tension emerges between these rights and the need to protect people from financial abuse and exploitation in conducting their banking and financial activities. There is also a need to ensure the legal validity of financial transactions.
6.115 An issue in relation to banking is the refusal of some banks to allow people with disability to access or operate a bank account independently, and hesitancy in recognising informal supporters. Such refusals may reflect bank concerns about capacity or financial exploitation. In this context, the Australian Bankers’ Association (ABA) has commented that
Financial exploitation of a vulnerable person is a deeply challenging area for banks. Every customer’s situation is unique and banks have an obligation to protect their customers’ privacy, maintain the bank’s duty of confidentiality, and to not unnecessarily intrude into their customers’ lives.
6.116 The ABA issues non-binding industry guidelines that are relevant to the ability of people with disability to engage with the banking industry and to make decisions in that context. In particular, the ABA has issued guidelines on responding to requests from a power of attorney or court-appointed administrator (the ABA guidelines).
6.117 The ABA guidelines explain how powers of attorney and court-appointed administrator arrangements apply to banks’ relationships with their customers; and outline a framework that banks can use to consistently deal with requests from attorneys and administrators.
6.118 The ABA guidelines note that it ‘is not the role of bank staff (or a bank) to determine a customer’s capacity’. They outline the roles of administrators and guardians, how to recognise their authority, and highlight differences in the role, authority and responsibilities of guardians and administrators between jurisdictions.
Encouraging supported decision making
Proposal 6–5 The Australian Bankers’ Association should encourage banks to recognise supported decision-making. To this end, the ABA should issue guidelines, reflecting the National Decision-Making Principles and recognising that:
(a) customers should be presumed to have the ability to make decisions about access to banking services;
(b) customers may be capable of making and communicating decisions concerning banking services, where they have access to necessary support;
(c) customers are entitled to support in making and communicating decisions; and
(d) banks should recognise supporters and respond to their requests, where possible and consistent with other legal duties.
6.119 There may be some reluctance on the part of banks to allow people who need decision-making support to access banking services independently and to recognise the role of supporters. Banks may tend to recognise only formal, substitute decision-making appointments. The ABA guidelines state, for example:
Banks have a contractual obligation to act in accordance with the customer’s mandate. If a customer has set up a power of attorney, or a court has appointed an administrator to represent a customer’s interests, then these authorities are considered to be in line with the customer’s mandate. It is important to recognise and respond to requests from these authorities as if they were made from the customer themselves.
6.120 In the ALRC’s view, people who need decision-making assistance should not necessarily have to access banking services only through an administrator or the holder of a power of attorney.
6.121 Submissions referred to difficulties faced by people with disability in obtaining access to banking services, including because supporters are not recognised. Pave the Way, for example, stated that banks often refuse to allow people with disability to have their own bank account:
This is a problem that is regularly experienced by families who are trying to open an ordinary bank account for their family member who has a disability. We are aware of numerous examples of banks being willing to open an account for a child without disability but refusing to open an account for a child with disability. Similarly banks regularly refuse to open accounts for adults with disability. While it appears that there is no actual legal impediment to banks offering this service, some banks express concern about capacity and others cite an obligation to protect vulnerable people. When facing this problem some families decide to seek an administration order.
6.122 The Equal Opportunity Commission of South Australia referred to a decision of the Equality Opportunity Tribunal (SA), which found that a finance company had discriminated against a loan applicant on the basis of disability. The Commission stated that the decision is ‘a reminder of the risk that service providers may take in making assumptions about a person based on a disability, without adequately assessing a person’s capacity’.
6.123 The Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance submitted that recognition of supported decision-making arrangements could better enable people with disabilities to ‘exercise equal legal capacity in their use of financial services’. While the reluctance of banks to recognise informal arrangements was said to be understandable, provision for supported decision-making could help provide certainty for banks, while still ensuring that ‘support for people with disabilities in the exercise of legal capacity is tailored to their needs, as required by Article 12 of the [CRPD]’.
6.124 Banking may not be an area in which the full Commonwealth decision-making model can easily be applied. It may not be practical, for example, to impose any legislative requirement on banks to set up their own systems for recognising supporters and responding to requests from these supporters.
6.125 The nomination of a supporter does not involve the limitations and protective formalities of, for example, a power of attorney. As discussed in Chapter 2, the ‘paradigm shift’ towards encouraging supported, rather than substitute, decision-making, is a relatively new development. Fully recognising supported decision-making arrangements would constitute a break with existing banking practices, which are based on contract and agency law, with potentially unforeseen legal consequences.
6.126 Nevertheless, here may be room to encourage a more flexible approach on the part of banks, without being prescriptive, and recognising that banks bear risks in relation to voidable transactions.
6.127 The ALRC proposes that the ABA provide additional guidance on how banks may meet the needs of people who require decision-making support to access banking services. This would be consistent with the ABA’s Code of Banking Practice, which states that banks ‘recognise the needs of older persons and customers with a disability to have access to transaction services, so we will take reasonable measures to enhance their access to those services’.
6.128 The new guidance should reflect the National Decision-Making Principles, including the Representative Decision-Making Guidelines. In particular, banks should be encouraged to recognise that customers:
should be presumed to have the ability to make decisions about access to banking services;
may remain capable of making and communicating decisions concerning banking services, where they have access to necessary support; and
are entitled to support in making and communicating decisions and banks should, where possible and consistent with other duties, recognise supporters and respond to their requests.
See, eg, Banking Act 1959 (Cth); Australian Prudential Regulation Authority Act 1998 (Cth); Australian Securities and Investments Commission Act 2001 (Cth).
UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) art 12(5).
See, eg, Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, (2012) 190.
Australian Bankers’ Association, Financial Abuse Prevention (12 November 2013) <http://www.bankers .asn.au/Consumers/Financial-abuse-prevention>.
ABA industry guidelines provide assistance to banks in recognising financial abuse, advocate raising awareness among bank employees about this risk, and outline strategies for dealing with a situation of potential financial abuse: Australian Bankers’ Association Industry Guideline, Protecting Vulnerable Customers from Potential Financial Abuse, June 2013.
Australian Bankers’ Association Industry Guideline, Responding to Requests from a Power of Attorney or Court-Appointed Administrator, June 2013, 1.
Ibid 4–5, 7.
Pave the Way, Submission 09.
Equal Opportunity Commission of South Australia, Submission 28. (Referring to Jackson v Homestart Finance  SAEOT 13).
Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance, Submission 20.
Eg, in relation to an appointment by written instrument, independent witnesses and so on.
Australian Bankers’ Association, Code of Banking Practice (2013) .
See ch 3.