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.
Dear Lynne, thank you for the informative article.
ReplyDeleteIs 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
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.
ReplyDeleteThe 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.