Wednesday, March 14, 2012

How does one report a suspected theft by power of attorney?

In my view, a lot of public education is necessary to help all of us spot and deal with individuals who are abusing powers of attorney. Let's face it, most of us aren't sure what someone is allowed to do under a power of attorney so it isn't easy to know whether they are acting improperly. But assuming we are pretty sure there really was wrongdoing, what happens next? This question was recently asked me by a reader:

"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?"

Theft by someone acting under a power of attorney is a crime under section 331 of Canada's Criminal Code (click the link here and scroll down if you want to read it). Therefore, you report it like any other crime by calling the police. Yes, that does seem harsh when the perpetrator is a family member or friend, but stealing from someone he's supposed to protect is harsh too.

Before calling the police, try to make sure you have the facts, at least as many as are available to you. Talking to the attorney to find out his side of the story would be a good idea. An attorney who willingly answers questions and shows you the books of account might be able to clear up your suspicions. And wouldn't it be nice if only more attorneys actually WERE willing to tell others what's going on instead of becoming hostile every time someone asks a question?

Be aware that there are other reasons why the value of an estate could be lower than you thought it should be, such as a weak stock market, falling real estate prices, or debts that weren't known about by the family. This doesn't mean you have to be able to prove it completely on your own, after all the police will investigate after you make your complaint, but you should have something solid to go on.
Yes, you can report a theft after the grantor has passed away. If you're the executor of the estate and you believe money is missing because of the attorney's intentional actions, you are required by your duty to the estate to find out what happened. If that means calling the police, so be it.

4 comments:

  1. Thanks very much for answering my question so thoroughly, Lynne

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  2. HOW CAN A FAMILY MEMBER OBTAIN A COPY OF FINANCIAL AND PERSONAL CARE POA FROM THE ATTORNEY WHO REFUSES TO RELEASE THIS INFORMATION TO ALL FAMILY MEMBERS

    ReplyDelete
    Replies
    1. You may not be able to get a copy of it. Are you entitled to have a copy of someone's private legal documents just because you're related to them and they are losing capacity? Not necessarily. You've mentioned "all family members" so you could be talking about people who are pretty distantly related.

      I recommend that you consult an experienced lawyer in your area who can determine whether or not you have a right to see those documents (it isn't automatic) and if so, will write a letter on your behalf asking for information.

      I understand your concern, though. I always wonder why a person named under a document suddenly starts acting like an international spy. What the heck is the big secret? You would think they'd figure out that secrecy only leads to speculation and lawsuits.

      What reason have they given for refusing to give you a copy of the documents? Is it the privacy of the person they represent? If they are like the majority of people who take on this role, it's nothing more than a power trip.

      Lynne

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  3. Small town police do not always consider it a crime, but rather a "family matter" and tell you to hire a lawyer to try and get your money back, while the lawyer tells you since you have no money to leave it in the police hands.

    Less than two weeks after I was told my mother had as little as 4 weeks to live my brother told the banks that she was dying and he was 'consolidating' my mother's assets, and despite the fact that I was joint, with sole right of survivorship on all bank assets, 3 banks broke the right of survivorship and turned over $100,000 to him, one even made the bank drafts payable to him. According to my mother's lawyer, he was removing it to keep me from removing large sums or writing checks on the accounts, but in fact it was to keep me from inheriting the money, and unfortunately when I went to the lawyer he chose to side with my brother, as did the banks. My mother spent all of her pension, and dying days trying to get it back for me, and now I'm told I will have to pay probate and all my mother's legal fees or basically the government will sell my home to pay for it.

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