What Can Be Done of a Family Member Is Stealing Money When They Have Power of Attorney

Abuse of Power of Attorney

Granting a power of attorney to someone else gives them considerable power over your finances and property.  If at that place is abuse of this power, the victim of this abuse volition often need help from authorities government or the courts to recover money, property or other assets.  This webpage sheet advises victims, or those assisting a victim, about what can be washed.

Definitions

There are a lot of specific terms used in this area:

• The Donor is the person who authorizes someone else to act on their behalf nether the authority of a power of attorney (they are also now called the 'adult').
• The Chaser is the person who acts on the donor'due south or adult's behalf through the power of attorney
• A "Ability of Attorney" ("POA") is the legal document through which the donor grants the power to the chaser to 'step into the donor'southward shoes' and human action on their behalf in legal and financial matters.  This authorisation can exist limited by the terms of the document.  The authority granted will come up to an finish if:
  • the donor revokes the potency;
  • the donor dies;  or,
  • the donor loses decision-making capacity and cannot revoke the agent's authority (to protect incapacitated donors who are no longer able to monitor their chaser and take action if abuse occurs – only not if the POA is 'enduring').
• An "Indelible Power of Chaser" is a POA that remains legally valid even if the donor loses the legal capacity to revoke the amanuensis'southward dominance.   This form of POA is a useful planning tool for those who want to plan for the possibility of incapacity.  This may avoid the date of a legal guardian not of the person's choosing.  It is important that y'all choose someone you lot trust.
• Incapacity is a legal test of decision-making ability from concerns that near typically arise from: mental illness; developmental inability; acquired brain injury; or, diseases associated with aging such as Alzheimer's and dementia.
• A "Springing Power of Attorney" is a special kind of enduring POA that does not become constructive when the donor signs it, dissimilar regular or enduring POA's.  Instead, it "springs" into effect at a subsequently fourth dimension or when a sure issue specified in the POA occurs.  Often this event will be the conclusion of incapacity of the donor.
• The Ceremonious Justice Arrangement includes lawyers and courts that handle non-criminal cases.
• The Criminal Justice Organisation includes constabulary enforcement professionals, prosecutors, and criminal courts.

Types of Powers of Attorney

1. General – effective at one time, ends on incapability, revocation or death – less mutual
2. Limited – like general, simply for specific purpose(southward) and/or express periods of time – also less mutual
3. Enduring – most common at present – agile now and continues into incapability until revocation or decease
4. Springing – somewhat common – not agile until incapability (or other 'trigger') and with capability trigger, ends if the donor regains capability or death

Annotation : These categories are not mutually exclusive – an EPOA or Springing POA tin can be limited or accept restrictions

Exmples of Abuse

POA abuse is the misuse past the attorney of the authority granted by the donor.  It means making a conclusion or taking an action that is not in the donor'south best interest.  An example would be when the attorney spends the donor's money to benefit the attorney, rather than the donor, without permission.  It may also include forging the donor's name on the POA or coercing someone to make a POA against their wishes. POA's, whether 'full general,' 'indelible' or 'springing,' usually are not subject to oversight by a court or third political party.  If the donor becomes incapacitated and can no longer monitor the chaser's actions,  this lack of oversight for a broadly written legal certificate makes it very easy for an attorney to corruption the authority they have been granted.  For this reason, a POA has sometimes been called a "license to steal."

The Chaser's Duty to the Donor

Just like a trustee, or an agent of a motion-picture show star or professional athlete, the attorney under a POA has a legal duty to follow the management of the person giving the authority, or to act as a fiduciary if the person can no longer direct them.  By and large, this ways that the attorney is required to act in a trustworthy fashion, and to make decisions that are in the donor'south all-time interest, or that are consistent with the decisions that the donor had made for themselves before losing decision-making capacity. While an attorney will not receive payment for this assistance and may not benefit from their authority, they are required by law to maintain authentic banking and accounting records, and be able to account for all the money and belongings they handle.   Although their deportment are non monitored, the Public Guardian and Trustee ("PG&T") can need an accounting if they receive a complaint of abuse of an incapacitated adult.  NOTE – Under BC constabulary, the attorney is only accountable personally to the donor, and to the PG&T if a demand is made.  Even if the donor becomes incapacitated, the attorney is not required to account to other family unit members.

Limiting a POA

It is not necessary to have a lawyer prepare a POA, just a lawyer may help POA abuse from occurring in the starting time place by writing a POA that limits the attorney'southward authority or allows third parties to exercise some oversight of the attorney.  See the commodity on Fugitive Elder Abuse past A Rogue Attorney – Kevin Smith – Scrivener Artic;le – Spring 2013 – written past one of our staff lawyers.

Revoking a POA

If an chaser has already abused a POA, the abuse tin can be stopped by revoking the POA.  Annotation that this can only be washed if the donor nevertheless has legal chapters.  Run into the Nidus website for information on POAs, including revoking a POA: world wide web.nidus.ca

Role of the Civil Justice System

The civil justice system's general role is to prevent impairment from occurring to individuals, and to recoup individuals when they are harmed.  When there is  abuse of a power of chaser, some legal remedies in civil court are:

• Asking a civil court to lodge the chaser to provide an accounting of how the donor's money has been spent;
• Suing the attorney in civil court to un-do transactions conducted past the attorney (rescission);
• Suing the attorney in civil court for misappropriating the donor'due south money or avails (conversion); or,
• Request the court to declare the donor to be incapacitated and appoint a committee (guardian) under the Patients Property Act to make decisions on behalf of the donor or a monitor to oversee the attorney'south actions on behalf of the donor.  The appointment of a committee, whether it is a family fellow member or the PGT, cancels the POA.

Under the Power of Attorney Human action, a concerned person may make a report to the PGT regarding any abuse or undue influence of an attorney.   The PGT may recommend that the  person apply to court under section 36 of the Ability of Attorney Deed, and a Judge "may make any order that the court considers necessary…."

Part of the Criminal Justice System

The criminal justice system'due south general role is to stop crime, punish people who have committed crimes, and protect society from further crimes.   An attorney who violates the fiduciary duty owed to the donor may take committed one or more crimes.   The chaser may have violated provincial and federal laws, including laws prohibiting:

• Criminal exploitation
• Embezzlement
• Forgery
• Fraud
• Larceny
• Theft/conversion

There are too specific provisions in the Criminal Code of Canada regarding abuses by trustees and attorneys under a POA. Police can exist asked to investigate alleged criminal conduct past an chaser.  Criminal justice professionals who are investigating or prosecuting POA abuse should have action to finish the chaser from spending or doing anything else with the donor'south remaining avails.  Asset freezes might be possible.  Additionally, prosecutors should inquire criminal court judges to society the attorney to return stolen money, avails or other holding to the donor – this is called restitution.

Part of the Public Guardian and Trustee

The PGT is a provincial government agency.  Office 3, Division two of the Power of Chaser Human activity discusses reporting of abuse of a power of attorney, and remedies available.   Co-ordinate to section 34(2) any person may brand a report to the PGT if they have reason to believe:

(a) an developed is, or was at the time, incapable of making, changing or revoking an enduring power of chaser,

(b) fraud, undue pressure or some other grade of abuse or fail is being or was used to induce an adult to make, change or revoke an enduring power of attorney, or

(c) an attorney is

(i) abusing or neglecting the person for whom the attorney is interim,

(ii) incapable of acting equally an attorney, or

(iii) otherwise failing to comply with an enduring power of attorney or with the duties of an attorney.

The Cess and Investigation Services ("AIS") division of the PGT takes reports and reviews allegations of financial abuse of vulnerable adults in the community to determine if substitute decision-making potency is required.  Where an older adult is incapacitated and at that place is immediate run a risk to the older adult's avails, the AIS division can investigate deportment of a rogue attorney, need an bookkeeping, and tin can temporarily freeze bank accounts or prevent holding transfers during an investigation.    When the PGT investigates, it operates under these principles:

• All adults are presumed to be capable until the reverse is demonstrated;
•  No one should have a decision-maker appointed by the Court until other alternatives have been considered; and,
• Everyone is entitled to the least intrusive but near effective support.

If yous require further information or you lot would like to brand a referral, you can contact the PG&T Assessment and Investigations Department at 604-660-4507; one-877-511-4111 or by electronic mail at aids-pds@trustee.bc.ca.

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DISCLAIMER – This web page contains legal information, not legal advice.  Every state of affairs is different.  You lot should see a lawyer for specific legal advice about your state of affairs.

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Source: https://seniorsfirstbc.ca/getting-help/elder-abuse-and-neglect/abuse-of-a-power-of-attorney/

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