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Tuesday, June 29, 2010

Jail term for theft by person holding power of attorney


Not long ago I mentioned in this blog that a person who was acting under an Enduring Power of Attorney could go to jail for theft of the property of the person he or she was supposedly representing. That post has led to several questions about how harshly the law might deal with a thieving Attorney under a Power of Attorney.

First of all, the crime of "Theft by a person holding power of attorney" is a specific crime under section 331 of the Canada Criminal Code. It is considered a specialized form of theft, which is a crime against property. The attorney can be found to have committed this crime if he or she sells, mortgages, pledges or in any other way disposes of some or all of the person's real or personal property. It is also theft if the attorney sold or mortgaged the property legitimately but then kept the proceeds, or did anything at all with the proceeds that he or she was not authorized to do by the Power of Attorney document. So you can see that it's a pretty broad definition.

The thieving Attorney can do jail time, as the punishment is the same as any other kind of theft. If the value of the property stolen is under $5,000, the jail term can be up to two years. If the property is worth more than $5,000, or if the property stolen is a testamentary instrument (e.g. a Will or Codicil), the jail time can be up to 10 years.

The reason many dishonest attorneys get away with abusing their position under the Enduring Power of Attorney is that nobody notices what's going on. And if anyone does notice, they tend not to say anything because they are too polite or feel they don't know enough about it, or they simply don't want to look greedy or nosy.

53 comments:

  1. Dear Lynne, thank you for the informative article.

    Is it possible to report a suspected theft by power of attorney after the grantor has deceased? It appears that the value of the estate has been lessened by this suspected theft.

    Also, how does one report a suspected theft by power of attorney?

    thank you in advance

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  2. I was joint with right of survivorship on all my mom's bank accounts and GICs, and within days of her being told she had terminal cancer my brother told my mom's lawyer he was worried I might "remove large sums of money" and the lawyer had no objections to him removing all the funds prior to my mom's death, despite the fact that he knew my brother was to only get a few thousand in the Will and the bulk of the estate was meant for me. All my mom's banks released the funds, without consulting me, even though I was joint at the time.

    The Police told me it would take a year or two and not to expect to get any money back, but told my mom that they considered it a 'family matter' and that she should take care of it herself.

    My mom's lawyer said since she had no money, that she should leave the matter with the Police.

    The result: Almost 3 years later my mother is still alive, and now has to spend her pension money to pay a another lawyer, trying to get some money back.

    I also found out, that although the bank said my mother's money was 'insured' it was not insured against theft.

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  3. Right on. Person w power of attorney can steal to without worry. If they stole the money the law does nothing and the thief has the money to hire lawyers and they do not

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  4. My daughters were left 1/8 of my mother's estate. It states that it is to be put into trust until they turn 18. A public trustee will be involved because no one else was named. My sister and I are both executors for the will. My my questions are, is it up to me to invest the money for my children? Can any money be used before the age of 18 for their general welfare; housing, food, etc?

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    1. Hi Jenn,
      I'm not sure what you mean by "a public trustee will be involved because no one else was named". You and your sisters were named as executors, which by default makes you two the trustees of the trusts for the children. Yes, it is up to both of you to invest the money for the children, unless the Public Trustee is going to do it.

      In some provinces, the Office of the Public Trustee is notified when minor beneficiaries inherit from an estate. Their role is to ensure that the children receive the inheritance they are supposed to receive, and that the children's interests are looked after. Whether or not they physically receive the inheritance and look after the investments for the children will depend on the wording of the will.

      Whether or not you can use some of the money for the general maintenance of the children again depends on the wording of the trust, and on the quality of the will (home-made wills are hopeless for trusts). Sometimes trusts are set up for the purpose of looking after kids while they are minors, but others are set up so that no money is available while they are minors. Still others are written so that funds can only be used for specific purposes such as education or health. I assume from the fact that you've asked me this question that so far you're not working with a lawyer. I think you should have a lawyer clarify exactly what you are allowed to do with the money in the trust. Take the will to an experienced lawyer and have a discussion about your rights and your responsibilities. It's worth it to spend a couple of hundred dollars at the beginning to avoid later having to spend tens of thousands if you should be sued for mis-managing the trust.

      Hope it goes well, and I'm very glad you're asking questions before going ahead.

      Lynne

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  5. My brother used his power of attorney to take over $400,000 for himself over 4 years. He says she wanted him to take the money. He also maxed credit cards totaling over $75,000 draining her accounts to less then $500 when she died.
    Terry

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    Replies
    1. Therese, what a terrible story. I wish I could say that it's rare, but unfortunately a lot of kids take advantage of their parents in this way, though not always to the extreme you've discussed.

      The only way to stop this is to take the initiative to step in. There is no government board or agency that watches over estates or powers of attorney. It's up to family members to do that. I know that's hard because family dynamics make it uncomfortable, if not impossible, to accuse other family members of crimes. That's how they get away with it.

      Lynne

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  6. I don't know if this thread is still active but who would you recommend as a lawyer if a theft by an Attorney is suspected? We are currently trying to do a Passing of Accounts but we don't know much about this type of matter. Thanks in advance for any recommendation.

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    Replies
    1. What city and province are you in? If I know of someone near you, I'd be happy to recommend them.

      Lynne

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    2. You can report to the OPGT investigations service and also file a police report.

      Delete
  7. I am a pow for my grandfather, my grandfather asked me to get repairs done to his house and I do mean very extensive and expensive, I do know alot of people who are for the most part licensed contractors, they agreed to do the work at about a third of the normal cost so long as they were paid in cash only, my grandfather is very happy with all the work and continues to request more renovations on a daily basis, so far he has invested over 150,000 to renovation as his house was never repaired in the 40 plus years he's had it, just the other day his bank called asking for a list of the renovations that were done and a full account of where the money went so my question is does a bank have the right to ask for this stuff, my grandfather is 86 and has not been deemed incompetent, he knows the amount that has been spent so far and is happy with it. We live in alberta canada, thank you

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  8. my aunt is steling and taking my grandmother for everythimh she has,my aunt my moms sister was givin p.o.a for their mom because my mother lives in alberta,over the past 5 years since my grandfather passed,the aunt has lost my grandmas house,befor made her remortgaged and made her pay for expensive renovations un-necessary ones,also paid for flights for her and her 2 daughters,numerous withdrwls amounts ranging from $1300.00-$34 000.00 for personal expenses she is taking advantage of her what can we do is this criminal or civil..this week my mother finally got ahold of her mom and my aunt got all of her phones and bills cut off also put cellphones in her name that my grandma didnt know about and paying for them out of grandmas accounts.she is a real monster we want to help our grandma,didnt know she was being taking like this by our aunt my moms sister and her 2 granddaughters.spending everything on her my papa would be turning in his grave over this,they lived in that house for over 40years and aunt made her sell it.still shocked to find out about all this.cant believe it.what should we do?

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  9. Hi , my gf and I have been friends for 50+yrs. which over the years she told me in front of my husband that she had a few selected pieces of her jewellery for me upon her death. Sadly, she passed March 22/16
    Now her husband of 3 yrs and her daughter 40 and hates me has said She didn't want YOU to have anything !!im sooo hurt over this. Is there anything I can do? Thank you Carol MacDonald

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    Replies
    1. Hi Carol,
      I don't think you're going to like my answer. Any verbal commitment to leave something to you is of no use. A person's will is considered to contain her last wishes and if your friend didn't say anything in her will about you, then you are not entitled to anything. Most likely, she trusted those around her to honour her verbal wishes, but that is only a moral obligation on their part, not a legally enforceable one.

      I doubt anyone has shown you the will so you probably have only their word for it that you are not a beneficiary. If you cannot accept their word for it, all you can really do is ask a lawyer to write a letter to the executor asking for written confirmation that you are not a beneficiary. Many family members are quite willing to lie openly to people they don't think should inherit, but few are willing to put a lie in writing to a lawyer. Now I'm not saying they ARE lying. I'm adding this bit simply because so many people tell me they don't believe it when they are told they have not been left something they expected to receive.

      Lynne

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  10. Hi

    My father passed away with out a will. He lived in Calgary and I was recently contact by an estate lawyer to have forms sent to me in Ontario. My question is how can I know if his assets are being documented fairly and can I dispute my concerns on how it's being divided? I found out that the house might be sold once it's been settled and a family member is building a house. I'm convinced the funding came from my father. Also what is the statute of limitations when a parent didn't pay any child support of one child and life was extremely difficult in comparison to the two children he fathered with another women? Can I refuse to proceed when I receive the paperwork?

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    1. There are a jumble of things happening here.

      As a general rule, an adult child cannot contest the division of a parent's estate on the basis that it seems unfair (unless you live in BC).

      Because there was no will, all of you kids will receive an equal share once debts are paid. This means that the usual grounds for contesting an estate, such as someone influencing your father to give them a larger share, are not available.

      You mention that the house might be sold, and this is exactly what should happen.

      You also mention that "a family member" might have received a large sum of money from your father. If by "family member" you mean one of your siblings, then this is an important issue to look into. A child who receives either a gift or a loan from a parent is considered in law to have received an advance on his or her inheritance. You said you are convinced, so if you have proof of the loan/gift, you should bring it to the attention of the person administering the estate.

      Your question about child support leaves out one important fact: was your father ordered by the court or by a signed agreement to pay child support? In other words, are there legally arrears outstanding? If so, that can be collected as a debt before the estate is divided. However, if there was never any support arrangement in place, I don't think you can now go back and retroactively ask for support for someone who is no longer a child. I would check with a family law lawyer on that last point since I haven't done any family law work for many years.

      You can refuse to proceed, but to what end? If you believe that just refusing to participate will cause the estate to come to a halt or will cause the distribution to change, you are wrong. If you want it to change, you have to either a) hire a lawyer and contest it or b) take the estate to mediation. Just digging in your heels won't do anything but drive up legal fees and reduce the estate for everyone involved.

      Lynne

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  11. Hi Lynne, is there any chance the police ( Toronto , On. ) would lay charges under sec.331 against my brother who had POA prior to my fathers death and is executor of his estate now . The executor refuses to provide any record of bank accounts held by my father prior to his death even though he was liquidating his asetts before he passed away ?

    Thanks.

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    Replies
    1. There is a chance, but not a great one, because you need evidence of theft first. Your best bet is to get the executor into court (civil, not criminal) to force a passing of accounts. If he still refuses to provide the accounting ordered by the judge, he will be in contempt of court and it will be up to the judge to decide whether that merits civil or criminal penalties. As part of your passing of accounts application, you can cover other relevant issues such as whether your brother needs to be booted off as executor, whether he needs to repay any funds personally, etc.

      Lynne

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    2. we are going though this now in montreal, quebec mmy brother in law has depleted my father- in laws accounts, police say its a family matter and lawyers cost lots of money ony to get a fraction of what was stolen as i see it this is one of the easiest crimes to commit and the fact that the police doesnt want to get invoved just confirms that if anyone wants to make a quick easy buck and commit the perfect crime just hide behind a power of attorney and rob your victim blind unfortunately because we the famiy were unaware of this power of attorney while mmy father in law was alive now the money is gone and the victim has passed away so the thief gets away with close to 94000$ can anyone help we thought about going public but our lawyer doesnt think the news stations would be interested in our story so another prick gets away with murder

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    3. Your lawyer is supposed to be giving you legal advice, not PR advice.

      Lynne

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  12. If someone appoints 2 power of attorneys and 1 of them commits fraud can they both be held liable

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    Replies
    1. The POA who did not commit the fraud if:
      - he didn't participate in it AND
      - he didn't know about it

      If he knew about it and didn't do anything to stop it, then yeah, he's going down too.

      Lynne

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    2. Sorry, may answer was incomplete. The first sentence should say "The POA who did not commit the fraud will not be held liable if"...

      Lynne

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  13. I have a question regarding what the law may do or charge (in Ontario) - if someone is a sole POA for an elderly person in a nursing home - and the elderly person suffers from Alzheimer's so not capable of making financial decisions, and the sole person having POA withdrew the monthly pension amounts and did not use it to pay the nursing home (the nursing home since intervened with the bank to have this account frozen) -- and the person has since now been served with a fraud charge and court appearance date, would the person be facing jail time? It is a large sum of money (well well over the $5k) - and they will have no means to pay any of it back... wondering what type of crime this will be considered as?

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    1. You said that the person has been charged with fraud, which is an offence under the Criminal Code. There are a number of different types of fraud charges and I don't know which specifically this person has been charged with. The most appropriate, it seems to me, would be theft by someone who is using a power of attorney. Other possibilities are theft, falsely using a credit card, forgery, etc.

      Because the amount is over $5,000, there is definitely a possibility of jail time. The maximum penalty for fraud and theft over $5,000 is two years in jail. We don't know that the person would be sentenced to the full two years or whether it would be something less; that depends on the facts.

      Lynne

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    2. THanks Lynne. The charges lay out 3 counts - one in regards to fraud & holding POA (section 331 of Criminal Code is what is references), another count referencing section 336 and then finally the 3rd count section 380, subsection 1 which I believe is just the reference to the over $5,000. I was inquiring - this is my ex-husband whom I don't have much contact with but he is the father of my 10yr old daughter so was somewhat trying to assess what may happen next and begin preparing for that unfortunate discussion with her. Trust me - I would welcome jail time as think this type of a crime is heartless against the most innocent of victims. Its a shame to hear how often family members do this to elderly individuals... he will have no means to pay any of it back (is on social assistance). Court date in in only a couple weeks time so we will know soon enough.

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  14. Lynne, my husband and brother in law are the only two children, they are joint CPOAs and joint executors for their senior mother.
    When their mother went into a nursing home, we discovered the youngest son had her 10 yrs earlier transfer her house to him (beneficial owner). He is joint on her bank accounts. My husband and his brother were told by the bank, they could not use the CPOA unless the mom came in and signed off. Mom is beyond that and it is a continuing PA.
    Recently my husband was asked to sign a T1 adjustment for his mom's income tax. His brother claiming the mom owed CRA. A quick call to CRA and no mom does not owe any money. In that voice mail, he also claims if my husband does not sign the papers, he will have to debit the mom's account to pay it and she will have no more money. We are not sure, but suspect the youngest son has been claiming various tax credits from his mom on his own income tax, eliminating or decreasing what he owes. Is there any way my husband can verify what has been claimed on his mother's income tax for the last 5 years?
    As mentioned the bank would not add the CPOA to the bank account, so my husband has no way to check if his mom's funds are being used for his mom. His brother ignores any and all requests to provide statements. It appears he may be claiming her expenses to cover the tax he had to pay after selling the house (he did not live there). It has been about 5 years, when all of a sudden he was taking his mom to have her income tax prepared, prior to that it was generally a niece or myself who drove her, but we never went into the actual meeting.
    The sad truth, I think their mom is being taken advantage of by the youngest son and my husband does not know where to start and hesitates, because it is his brother.

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  15. Lynne, My sister had a POA for our Dad for the last 8 years,the last 40 months of his life he was in a nursing home. His monthly rent was automatically withdrawn from his account. He passed away and as executor I went to high bank to see about finalizing his asset distribution. I got the account history for the last 7 years and seen that there was a lot of money withdrew over the last couple of years while he was in the nursing mothers. These were done with multiple withdrawals each month averaging $1500 a month. As I said, his rent was done through automatic withdrawal so the monthly cash needed for personal items would have been a lot less than what was removed from his accounts. There was also a lot of purchases done through debit. What could I do about having her investigated for theft and possibly charged. Thanks

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    1. The investigation is up to you. As executor you have the right to demand that she pass a full set of accounts for the time she had the POA. This means FULL information backed up by receipts etc. If there is money missing, and it sounds as if there just might be, then you can do a couple of things. One is to go through the civil courts to get an order that she owes the money. This opens up the right to collection if she doesn't pay (garnishment, seizing assets, contempt of court, etc).

      As someone acting under a POA, she is not entitled to keep any money for herself unless the document allowed her to pay herself.

      Depending on the facts, you might also be able to talk to the police about her. Make sure you have the figures and facts before you do this. If your city has an elder abuse unit in its police force, that's a great place to start.

      Keep in mind that the police are reluctant to get involved in this type of matter. It's not that they don't care; it's just that the waters are muddied by the existence of the POA. That document gives huge power and trying to determine whether it was properly used requires a judge. Police officers are not judges.

      Lynne

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  16. Lynne I am a joint PA for my mom,recently her bank let me view statements on an account held by mom. Her pensions go into this account. My brother was added to that account for ease of banking (so he is joint). I looked at two years of statements and sad to say there are a number of large transfers to his accounts, during the two years. I also realized that when I signed a T1013 for her income tax, my brother filed a T2201 without my knowledge and placed himself in section 2 to receive the income tax credit. He is also attempting to claim the tax credit for her medical expenses. He is out of control, approx $15,000 from her accounts, he also had her sign over her home to avoid taxes (he sold the house and kept the money)and is taking tax credits for himself. What can I do to stop him.

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    1. You have power of attorney. Close the joint account and open one in just your mother's name. That will put an end to taking the money. Contact Canada Revenue Agency and establish with them your authority to manage her affairs, then direct them to send the T-slips out appropriately.

      You said you're joint POA but you didn't say who the other person is. If it's your brother, you're going to have to explain to him the concept of being a trustee and the fact that he is acting unlawfully. If he won't desist, and your mom can't make a new POA, your only option is to get a court to remove him.

      Lynne

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    2. Thank you Lynne and yes my brother, with his hand in the pot is the joint Power of Attorney. My mom has dementia.
      The bank will not let me do anything without his joint signature since he is the joint owner of the account and the P./A. The deposits are my mom's (CPP & OAS). He also cashes her pension cheques from Italy and transfers the money to his own account.
      I thought about having him charged under Financial Elder abuse, but I am not sure how they view joint accounts.

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  17. Lynne,

    I have been reading your blogs in my google searches for 13 months. My grandmother passed away in Feb 2016. In June of 2012 my uncle passed away and by October of 2012 his wife of just 9 years suddenly replaced her long standing and trusted financial POA, her will was vary drastically and uncharacteristically changed, her bank accounts made joint with her new POA and her home made joint with the same person. To date there has been zero accounting as the POA by my uncles widow, whom he had only been married to for 9 years. We don't know who she was before he married her as any details of her name before hand were never disclosed, we didn't find out until we went to the funeral how drastically wrong everything was or how deep the changes were when our uncle passed away, we found out far too many things immediately after she passed away. We requested the name and address of the nursing home our grandmother had been admitted to so we could send mail and were denied that information, we were denied a telephone number to the home, our eulogy was withheld from the reverend that held the funeral service, while still in her home our grandmothers access to the telephone was restricted, and we learned of the will changes and behavioral changes in my grandmother at the time of the change. The POA lied for years about the state of our grandmothers affairs and the number of accounts she was suddenly joint on. We could care less about the money what concerns us the most is the passing of our family burial plot as chattel in this new will as our father is there and was buried there by our grandmother in 2000 when as his legal next of kin his children should have had a say in his body, we do not want to lose our fathers remains. We are the last of our family line and have no children. Our uncle never had children and his widow has already destroyed our entire family history. My sister and I have tried on numerous occasions to report to the police fraud and abuse and they say it is a civil matter. The will is still being held up in probate and each passing month makes it harder to report a crime money was drawing out of accounts after notification of death and we were threatened at my grandmothers funeral of legal action if we attempted to question anything or look into changes made. I feel like this must fall under crime and not a civil action. Something very drastically wrong was happening and we live in different provinces. We can find no information on our uncles widow prior the their marriage nor can we gain any information on accounts or request that information on the Changes and time I which this person too financial POA. We want a detailed listing and an investigation. Without the means to hire a civil lawyer and with no one looking at criminal intent who do we turn to?

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  18. Theft as a CPOA;

    Lynne we are currently going through bank statements on my mom's accounts. It turns out that her joint account holder (placed for ease of banking) and her CPOA is the same person has been transferring funds to his own accounts.
    In 5 years this person has taken over $55,000 for his own use. The CPOA was signed in 2002 and so far we have only went back to 2011. He also convinced her to sign over ownership of her home in 2005.
    Mom has dementia and the elder abuse line told us, since she is mentally incapable, it can not be proved and as long as he pays her nursing home bill, not elder abuse? Really and they wonder why no one reports it!
    Is this consider theft under a POA and what can we do?

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    1. It seems to me that the first priority should be getting rid of this person as POA wile your mom still has a few dollars left.

      Consider hiring a lawyer who can help you get an explanation for the missing money and possibly get it returned. You can also look into the transfer of the home - it does seem suspicious that your mom would have the capacity to sign over her home 3 years after losing capacity.

      If working with the lawyer confirms that money has been taken by the POA, you can have the POA removed, and can possibly report your cousin to the police. It's not impossible to prove theft by POA but the waters are muddied by the existence of a document that seems on the face of it to allow the person to use the money.

      Lynne

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  19. Get all banking statements for any parent's accounts and assets.. Go thru every transaction and write down where the money was spent. if it was transfers, drafts, checks write it all down then take ur information to the police..they have to do something.. I have been doing this for 2.5 years..it is alot of work and even tho get a lawyer it is faster and cheaper in the long run if u can do it urself.. dont hestiate to contact me and i will be more than happy to guide u....

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    1. Thanks for this reply. It's always good to hear from someone who has actually been there, especially in this very tricky situation.

      Lynne

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  20. Hi Lynne,
    Awaiting trial against my sister on behalf of my mother.Slightly under 200K was taken from mom's Trust. I attained Committeeship last recently and trial date this coming January. My question to you is: once civil proceedings take place with a judgement for recovery, why then does the criminality of the act disappear? It is my understanding that here in B.C. the police will only get involved once a judgement is made, and no funds are repaid?
    If the funds are repaid as per the judgement by the courts, then what? Somehow the criminality disappears. Can my sister still be charged criminally sec.331 even after repayment...or does it all depend on whether or not there is recovery.

    If I robbed a bank and committed a criminal act in doing so, surely I wouldn't get off with just paying back what I took.

    Thanks,

    Family crime

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  21. Hi Lynne: What financial information (if any) is a beneficiary of a Will entitled to request from the person who held Power of Attorney for the deceased? eg/ prior years' tax returns, bank statements, Accounting by Personal Attorney.....? With reference to Saskatchewan law.

    Thank you.

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    1. Hi Helen,
      There is no requirement that a POA report to a beneficiary. However there IS a requirement that the POA give a full financial accounting to the executor, and of course to hand over all financial materials to the executor.

      At some point (or points) the executor will account for the estate to the beneficiaries. Information received from the POA would be included there.

      In the meantime, if the executor feels that the financial info received from the POA is timely or relevant to the beneficiaries, it can certainly be shared by the executor.

      Lynne

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    2. Thank you so much, Lynne, for this very useful information!

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  22. Lynne... I came across this site for a reason... My husband passed away 12 years ago... My children and I were very very close to my Father and Mother in law so much so we never considered us as in laws... My father in law passed away 10 yrs ago and was very open about his and Mums wills... I was an equal to their other 2 surviving children (although their spouses were not) and was to get a third of the estate and each of my children a lump sum, if Mum predeceased him, if not then the estate was to go to Mum so that she would be properly and well cared for. BOTH Mum and Dad's wills were identical and they made my husband's sisters son executor after i declined...Upon Dad's death Mums mental state had already started to deteriorate... My husband's sister and brother had Mum put her house up for sale, cleared out all valuables and moved her into her daughters home in the middle of no where... She was cut off from all contact and communication with the rest of her family and friends and most days left alone... They said that we would never get a penny and they would make sure Mum forgot us...They spent all her money on trips, new homes, renovations, lavish wedding etc... took out credit cards in her name and we assume when there was nothing left that is when they through her into a disgusting filthy nursing home where she shared a tiny room with 4 other people and left there to wither away... My husband's sisters daughter called to let us know she passed away on Oct 4th... They knew for days prior that she was dying and never had the decency to let anyone know...We waited to hear about funeral arrangements and on when we heard nothing by the evening of the 5th we Googled Mums name and came across a very cold obituary from a funeral home only stating date of death cremation already done no visitation and no service... no mention of her life her family ... we then called the funeral home and were told only her daughter and her son could pick up her remains and both had signed for the the cremation and no visitation or service... yet her son said he didn't know anything about it nor did he sign anything... Did his sister commit fraud and have someone say they were her sons name? Then today I called the cemetery where my husband his father and brother are buried and where Mums plot is with them to see if anything had been arranged for her burial and low and behold they had... again not wanting anyone to know...
    I believe elder abuse and theft of her money and any inheritance that may have been for my children has been stolen...
    Can you please help me? Can you please tell me how I can find out what they did with all her money and if there is any chance to go after them for what should have been my children's inheritance... Can a lawyer ask to see her will and if it was changed after Dad died... I have a message from her daughter from 9 years ago stating Mums state of mind... I'm so lost... my children and I are devastated at their total lack of compassion and disregard of our love and pain at the loss of a mother and grandmother...

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  23. Hello Lynn, in 2012 my mother found out that my stepfather had somehow taken her power of attorney and transferred his and her share of the home to his sister as a gift in 1998. The mortgage documents show my mom was on the mortgage up until 2004 when the house was sold and a new home was bought and constructed. My stepfather and his sister were on title. Also in 1998 my mom was removed as a director from the family business, this was about 10 days after the home transfer and shortly after my mothers vehicle was transferred as a gift to my stepfather. We have been unable to find help. Due to this occuring many years ago can my mother recover anything? Are there any lawyers you can reccomend in Vancouver, BC ? Your help is appreciated.

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    1. The problem you are going to run into is that it has been almost 6 years since your mother found out about this transaction. Normally any civil lawsuit must be brought within two years of the event, or of discovery of the event. This means you'd be out of time to bring a lawsuit to reverse the transactions.

      However, there is also the fact that the transactions were fraudulent. That is a criminal act as opposed to a civil matter. You might find some help with the criminal law. I have no involvement with criminal law so I am out of my depth with it. You might wish to consult a lawyer who specializes in criminal law or consult with the police economic crime unit.

      Lynne

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  24. Hi Lynne.
    In Edmonton, AB. Situation is my mother was deemed to have lost capacity in January of this year (dementia related). She had enduring Power of Attorney and Personal Directives in place that were activated. Find out after the fact that the brother that is her POA had her POA document changed in July 2017 - previous POA (in alignment with her PD and Will) had two persons listed - now it is just himself. At the time in July I was led to bleive that he was taking her to a laywer to have a informal trusteeship type arrangement done such that he could assist with financial matters - not changing her enduring power of attorney. He has since refused to provide copies of the actual documents. After the fact I have come to learn that he as removed more than $30 000 from her account (either transfers or to his credit card). I am obviously very concerned, he refuses to account for the funds (he knows that he is not legally bound to justify himself to anyone) and also makes statements of intent to re-purpose her income from the family farm away from her to meet his own financial needs. I and another brother are identified in the personal directive. Do I / we have any leverage with him given she has been deemed to not have capacity (his loophole for being accountable to anyone, he says) and what mechanisms are in the 'system' to safeguard her assets?? (A recommendation for a lawyer would be welcomed too, or even what branch of law this falls to). Sincere thanks.

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    1. You have the right to take him to court. Any person with a genuine interest in your mother's welfare could do so, but you have the added standing of being a potential beneficiary under her will.

      He is not correct about not being accountable to anyone. What he really means is that he figures he can't be caught. However he is bound by law to act in your mother's best interests and it really doesn't sound as if he is doing so. A judge can order that he be removed as the named attorney. You might consider combining that application with a request that you be appointed as her guardian and trustee in his place.

      The judge might also order that the funds taken by your brother are to be repaid.

      If you believe that he has taken money, consider contacting the elder abuse section of the police. They will launch an investigation, though it is helpful if you have precise information about amounts, bank accounts, dates, etc. If it can be proved that he took the money for himself, he may be arrested and eventually convicted. If he's walking around talking about his plans to divert her income to himself, he deserves to have the police investigate him.

      There aren't many safeguards in the system. We have to rely on the police and the courts.

      This kind of work is done by most lawyers who specialize in wills and estates law. I happen to know many really good lawyers in the Edmonton area because I practiced there myself for such a long time. Consider any of the following: Phil Renaud, Helen Ward, Andrew McLaughlin (Sherwood Park), Doug Gorman, Karen Rackel, David Koski.

      Lynne

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    2. Thank you so much for your insights and information.

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  25. I have POA for my 92 year old mom who is now in a nursing home. I discovered she has a bill of 17,000.00 to a credit card company. I found this out after I took over her finances, etc. Her sister had been taking care of her finances previously. (I am not implying in any way that there was mishandling or fraud). My mom had been directing her.
    Solvency companies said she is not responsible to pay this debt as she only has, oldage, small Capp income.
    I am being harassed by the credit company to send in my POA. Am I obligated?

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    1. If you are asking whether you're obligated to provide a copy of your POA document, the answer is no. But if you don't, they are not obligated to tell you anything or work with you. They have to keep your mom's privacy in mind and there is also the issue that an adult is considered to be competent to handle her own affairs unless proven otherwise. So they are within their rights to refuse to deal with anyone who will not prove they have the right to represent your mom.

      Lynne

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