Real Time Web Analytics

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.

34 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

    ReplyDelete
  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.

    ReplyDelete
  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

    ReplyDelete
  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?

    ReplyDelete
    Replies
    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

      Delete
  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

    ReplyDelete
    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

      Delete
  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.

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

      Lynne

      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

    ReplyDelete
  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?

    ReplyDelete
  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

    ReplyDelete
    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

      Delete
  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?

    ReplyDelete
    Replies
    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

      Delete



  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.

    ReplyDelete
    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

      Delete
    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

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

      Lynne

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

    ReplyDelete
    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

      Delete
    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

      Delete
  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?

    ReplyDelete
    Replies
    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

      Delete
    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.

      Delete
  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.

    ReplyDelete
  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

    ReplyDelete
    Replies
    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

      Delete
  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.

    ReplyDelete
    Replies
    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

      Delete
    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.

      Delete
  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?

    ReplyDelete
  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?

    ReplyDelete
    Replies
    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

      Delete

You might also like

Related Posts with Thumbnails