Lawyers can help stop abuse of power of attorney

Cases of elder abuse resulting in criminal charges have proven to be rare, and lawyers say that it’s frustrating when police don’t take matters seriously.

Lawyers can help stop abuse of power of attorney
Kim Whaley says the current trend has moved toward parties litigating over assets while people are still alive rather than will challenges after a person has died.

Cases of elder abuse resulting in criminal charges have proven to be rare, and lawyers say that it’s frustrating when police don’t take matters seriously.

“A larger proportion of our practice these days has to do with power of attorney issues of one form or another — more so than 10 years ago,” notes Kimberly Whaley, founding partner of Whaley Estate Litigation Partners in Toronto.

Whaley notes that the current trend has moved toward parties litigating over assets while people are still alive rather than will challenges after a person has died.

More common as well are abuses or misuses of power of attorney documents by those who have decision-making powers.

Whaley says that a lot of questions that come to her are about alleged abuses of elders, often by family members, and how to stop them. However, she says that is often complicated because the grantor’s capacity is unknown, and if the attorney is truly engaging in predatory behaviour, they will make the grantor unavailable for assessment.

Pushing for court orders for capacity assessments quickly becomes messy, she says, especially within a family dynamic.

For example, she says, one problem may be that people given powers of attorney may not understand their boundaries, like in parent-child relationships.

“[Adult children] are really not supposed to take their parents’ account and put their money in their own account because it’s easier for them to write cheques,” says Chuck Merovitz, partner with Merovitz Potechin LLP in Ottawa.

“It’s really supposed to be their parents’ account; they’re supposed to use their power of attorney to make the payments from their parents’ account.”

Merovitz adds that this means people with powers of attorney should not borrow from grantors’ accounts, nor give themselves gifts, barring where there is an established pattern, like a birthday.

“There are restrictions around what a power of attorney is supposed to do, and the main issue to me is educating powers of attorney as to what they can and cannot do,” says Merovitz.

Whaley says that the courts are not well equipped to deal with these matters quickly or cost effectively, which means that, often, a grantor will die before the issue is resolved, and the cost of litigation can deplete the value of the assets in an estate.

Whaley says that criminal fraud trials arising from power of attorney issues are increasing, but they remain quite rare because there is a severe under-reporting of incidents to the police.

“The elderly person, no matter if they’re capable or just vulnerable and frail, they don’t want to press charges against their children,” she says.

Whaley, who is the civilian chairwoman of a police services board that advises the chief on elder law issues, says it’s difficult to prosecute because it’s almost impossible to get evidence.

“They’re not going to get the evidence that they need from the victim, to get access to investigate financial fraud or exploitation,” says Whaley.

“Predators, especially family members, are intent on keeping it hidden because they can.”

Merovitz says that abuses may not come to light unless a relative is worried about the assets of the grantor.

“The usual situation in which a power of attorney is called to account is if there’s another sibling who doesn’t like what’s happening, and sometimes it doesn’t even happen until the grantor’s death,” says Merovitz.

There has also been a reluctance by some police forces to view abuses of power of attorney as a criminal matter, says Holly LeValliant, partner with Eisen Law in Toronto.

“Of the hundreds of files I’ve worked on specifically where I think there is fraud, the police are not helpful,” says LeValliant.

“The police refuse to become involved if they have any inkling that this could be dealt with in the civil court instead.”

LeValliant says that this brings up problems of access to justice, where people are unable to afford a private lawyer to go to court to bring a guardianship application just to get a lawyer to go to court on their behalf.

“You may have a person who is trying to protect a parent or another elderly possible who is out of pocket and may never get all of their costs back,” says LeValliant.

“This can also take years, and in the meantime, we have elderly people who are being taken advantage of, who are vulnerable, and I have never once seen the police respond to financial abuse.”

LeValliant says that she has never seen a charge or an arrest in her own experience, nor has anyone in her office, with thousands of cases seen.

One case in Ottawa saw the conviction of a daughter who was found by a jury to have defrauded her father after she was given power of attorney over his affairs. The case, which was presided over by Justice Giovanna Toscana Roccamo, was not reported and not appealed.

LeValliant says that because the case is unreported, its utility as a precedent is limited.

“The problem with an unreported case is that nobody knows it happened,” says LeValliant.

“It would be a great precedent and should be reported. In the estates bar, I know I would find that useful, but, unfortunately, those cases are not normally dealt with that way.”

Whaley notes that even if elder abuse is proven, sentences are not long, and it becomes difficult to get any money back. Sometimes, a public guardian or trustee does step in to act as a litigation guardian to recoup some assets.

“The trouble is that we’re not seeing many reported cases later on of what happens after those proceedings commence, and what the success is of those further proceedings to try and get money back,” says Whaley.

“We just know that some of these elderly people are then left destitute as a result of their own children’s actions, and it’s really horrible.”

As part of their recent final report on “Legal Capacity, Decision-making and Guardianship,” the Law Commission of Ontario made several recommendations on enhancing clarity and accountability when it comes to powers of attorney, in order to address concerns around the financial abuse of older persons through use of powers of attorney.

The recommendations include: a mandatory standard-form statement of commitment to be signed by the people accepting an appointment as an attorney prior to acting for the first time under such an appointment; the delivery of notices of attorney acting at the time that the attorney first begins to act in that capacity, which would be delivered to the grantor, the spouse, any previous attorney and any monitor appointed, as well as any other person identified in the power of attorney instrument; and the option to name a monitor, who would have statutory powers to visit and communicate with the grantor and to review the accounts and records kept by the attorney.

Another recommendation is for a separate tribunal to deal with power of attorney issues in a faster and more cost-effective manner.

“Hopefully, some of those recommendations will be acted upon,” says Whaley.     


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