June 1, 2017 By: Carol Craig
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What can you do if you suspect that someone acting as a Power of Attorney for Property is mismanaging an incapable person’s assets?

Canadians are now more than ever realizing the benefits of having Powers of Attorney (“POA”). We are living longer into old age, and planning for the future has become a necessity. POAs are useful planning tools for ensuring your health and financial interests are legally protected if you become incapable of decision-making.

What are Powers of Attorney?

POAs are legal documents where one person, known as “the grantor”, authorizes another person or institution, known as “the attorney”, to act on their behalf. There are two common types of Powers of Attorney: POA for property and POA for personal care.

If you are not able to manage your property, you will need someone who you trust to step in and help make decisions for you; for example, related to your income and investments, budgeting, bill payments, living expenses, and place of residence. Your attorney for property will be legally required to act in your best interest, and to exercise the care, diligence, and skill of a reasonably prudent person. They will also be under a legal duty to follow your direction, stay within the scope of the provincial laws, and act honestly and in good faith.

And why shouldn’t they? Your attorney will likely be your spouse, your child, or another trusted family member or friend. So won’t they always act in your interests?

Unfortunately, it’s not always so simple. While a POA for property is intended to protect a person in their time of vulnerability or ill health, these documents sometimes tempt misdeeds. Financial abuse has become a common problem in POAs, ranging from small amounts of money being pilfered from savings accounts, to entire estates being stolen.

Stolen funds

Take, for example, a recent case involving a family of five brothers in Toronto, Ontario.[1] One of the brothers was named as the mother’s Power of Attorney, and decided to move in and care for her as her Alzheimer’s disease worsened. He hired help, but eventually decided his mother should be moved to a care facility. To afford a care facility with a monthly cost exceeding the mother’s Canada Pension and Old Age Security, the POA decided to take out a mortgage on his mother’s Toronto home.

While the mortgage funds were necessary to support the mother’s needs, it was not long before the attorney began making personal withdrawals. What started as a few small amounts here and there, ultimately resulted in transactions as large as $150,000. When asked to account for the significant financial withdrawals, the POA’s recollection was either vague or non-existent. Renovations to the mother’s home, where the POA continued to live rent-free, were a likely suspect.

The court found that the POA worsened his mother’s financial situation while improving his own. He made no distinction between her resources and his, and so the court ordered him to repay his brothers the money that he had taken.

Multiple Powers of Attorney?

In another recent Ontario case, two sisters went to court to sort out which of their mother’s two Powers of Attorney for property was valid. The mother originally named all three of her children as her joint POAs, but as she grew more forgetful and less capable of keeping track of her finances, one sister took a particular interest in her mother’s assets. She took the mother to her own lawyer and had the mother designate her as the sole attorney, and began quietly taking joint ownership of her mother’s property.

Catching wind of these acts, the second sister took the mother to another lawyer to sign a new POA, reinstating all three children as joint attorneys. The two sisters ended up in court, disputing the validity of the conflicting POAs, each claiming the other manipulated the mother.

Fortunately, the court recognized the misconduct of the first sister. This financial abuse included moving the mother’s savings, approximately $93,000, from the mother’s account to a joint account, and transferring title in the mother’s home to her and the mother together as joint tenants. The court agreed with the second sister, and removed the first as attorney for property.

Drafting POAs

As mentioned above, a POA is a powerful document that permits your attorney to take a wide range of actions in respect of your property. Abusers frequently defend their misconduct by pointing to the document’s far-reaching terms. The language used in POAs can also make it difficult for grantors to fully understand the extent of the powers they are giving to the attorney, or whether the chosen attorney should be trusted with such power to act in honesty and good faith. As a result, vulnerable older adults or incapable persons run the risk of falling victim to the personal interests of their attorney. The private nature of these indiscretions makes it difficult, even for close family members, to prevent abuse.

When carefully drafted, POAs can protect grantors, reduce family conflict, and prevent unnecessary and expensive litigation between family members. Often, however, POAs end up at the heart of family tension.

Concerns?

If you are concerned about how an attorney is managing someone’s property and assets, there are some red flags you can keep an eye out for. Below are some examples of signals of abuse:

  • The POA has the grantor declared incompetent. When this happens, it means the grantor is no longer able to make choices for themselves, including revoking the POA, which gives the attorney considerable power;
  • Changes to the grantor’s living arrangements, such as new people moving in, or the grantor moving out;
  • Poor living conditions in comparison with what you know of the grantor’s assets and savings;
  • The granter is confused about their financial situation;
  • The grantor is unclear about the signing of legal documents;
  • Unexplained disappearance of possessions; and
  • Unexplained or sudden withdrawals from bank accounts.

Remember, a POA should be:

  • Managing the grantor’s property in a manner consistent with the grantor’s wishes;
  • Consulting the grantor on decision-making where possible;
  • Keeping track of expenditures;
  • Spending funds, including for gifts and loans, in accordance with the law; that is, the Substitute Decisions Act; and
  • Making purchases only as would be reasonable for the support, education, and care of the incapable person, or their dependants.

If you suspect a Power of Attorney for property is mismanaging your loved one’s assets, consider contacting the following resources:

  • A Lawyer with Experience in dealing with Powers of Attorney issues
  • Elder Abuse Ontario
    • Formerly known as The Ontario Network for the Prevention of Elder Abuse, Elder Abuse Ontario is a provincial, charitable, non-profit organization focused on raising awareness of elder abuse issues, and supports outreach programs and initiatives focused on elder abuse prevention. Telephone: 1-866-299-1011 (Senior Safety Line)
  • The Advocacy Centre for the Elderly
    • The Advocacy Centre for the Elderly is a community-based legal clinic for low income senior citizens, funded through Legal Aid Ontario, that specializes in the legal problems of seniors. Although based in Toronto, it is also a valuable resource for individuals outside of the city. 
      Telephone: 1-855-598-2656
  • Your City Police Service
    • In Ottawa, contact the police division responsible for investigating elder abuse in your area. Telephone in Ottawa: 613-236-1222 ext 2400 (Please note, this number is for non-emergency calls only)
  • Office of the Public Guardian and Trustee (OPGT)
    • The OPGT offers a range of services that protect the legal, personal, and financial interests of vulnerable persons. Telephone: 1–800–366–0335 (toll-free)
  • The Canadian Anti-Fraud Centre
    • If you want to report a fraud, or if you need more information, telephone: 1-888-495-8501 (toll-free)

Carol Craig is an associate lawyer with the Ottawa law firm of Nelligan O’Brien Payne LLP (www.nelligan.ca) and a member of the Wills and Estates Practice Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.