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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.

21 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

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    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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  4. Do I have any legal recourse when a Continuing Power of Attorney for Property and Power of Attorney for Personal Care is suddenly changed behind my back? I had been co- attorney on both Continuing Power of Attorney and Personal Care until I questioned the co attorney to show me financial statements (as he shared joint bank account with guarantor), and what monies he was withdrawing from her bank accounts. He refused to comply. Next thing I know he has drawn up new POAs and had the guarantor sign while she was in hospital. The Powers of Attorney were not fully explained to her. Also when questioned she does not remember signing these forms and who was present when she did. She insists that everything is 50/50 for her children to handle. The previous Power of Attorneys had been drafted by a lawyer, the new one from a kit downloaded from internet.

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    1. A person who is named under a POA does not have the right to be informed or consulted when someone changes their POA. That part doesn't bother me. But the part about someone being asked to sign a new document when they are clearly vulnerable definitely bothers me.

      Anyone who cares about this person, including you, has the right to ask the court to overturn the POA that was signed in the hospital. You'd have to bring evidence of the person's health and vulnerability, of course. The judge won't overturn it without good evidence. I would suspect that if it is overturned, the judge would agree to put you back in charge because you were named on the earlier one.

      Lynne

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  5. I believe the one by the lawyer will prevail and the one off the internet would not be valid as recognised go to the banks. Ask see the manager to freeze the accounts until this is straightened out or they will be held accountable due to negligence, put that in writing and registered letter then, call the customer relations and their legal advisor as well get a lawyer to contact a judge to freeze the accounts especially the joint accounts.

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  6. Off the interment form is just legal as one from the attorney. But you can get one off the internet and your mother can then issue a new POA in this manner and this would negate the previous POA as long as the new one is new POA is filled and signed in front of two witnesses who are not family members.

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    1. I don't know where you are getting your information but you are absolutely wrong. First of all a form taken off the "interment" may be legal but comes with no advice as to what should be in it. Secondly, you have given no thought to the question of whether the parent is still mentally capable of signing a new POA. Do you have any idea how many people are out there directing their elderly parents to sign things the parents don't understand and don't want to sign? And finally, your witness information is totally wrong. Only wills need two witnesses, and the requirement that it not be a family member is also wrong. For heaven's sake stop handing out this kind of information when you have no idea what you're talking about and no care for the elderly parent.

      Lynne

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  7. Hi my mother made my sister POA and executor of her will. My mother had a stroke and was put in a care home in 2010. Since then the rest of the siblings four of us have been asking for transperancy and she out right refuses and gets upset like we dont trust her. She has already sold off two of her houses and has one left. My sister and her husband have bought new excevation equip for there company and everything is very suspicious but talking toa lawyer about it he said you ned proof. Here inlyes the problem with POA. She has no legal duties to be transperent with the rest of the family and she has told us this many times. We are not stangers we are family and to not want to tell her siblings whats going on to us means she is definitely hiding something. My question is what can we do. There was millions involved.

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  8. This comment has been removed by a blog administrator.

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  9. Hi my mother made my sister POA and executor of her will. My mother had a stroke and was put in a care home in 2010. Since then the rest of the siblings four of us have been asking for transperancy and she out right refuses and gets upset like we dont trust her. She has already sold off two of her houses and has one left. My sister and her husband have bought new excevation equip for there company and everything is very suspicious but talking toa lawyer about it he said you ned proof. Here inlyes the problem with POA. She has no legal duties to be transperent with the rest of the family and she has told us this many times. We are not stangers we are family and to not want to tell her siblings whats going on to us means she is definitely hiding something. My question is what can we do. There was millions involved.

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    1. She may have told you many times that she has no legal need to be transparent, but she would be wrong about that. You do have the right to compel her to provide full details. Anyone with a true interest in the affairs of the donor (i.e. your mother) can ask the court for assistance in getting information.

      It is true, as your lawyer says, that you need proof if you are trying to remove the POA. However, you do not need proof to bring your concerns and questions.

      Here's how the Enduring Power of Attorney act says it here in my province:

      "A person with an interest in the estate of the donor, or another person permitted by the court, may, where the donor is legally incapacitated, apply to the court for an order requiring the attorney to submit his or her accounts for a transaction involving the estate of the donor.
      (2) Where an order is made under subsection (1), the attorney shall file his or her accounts in the registry of the court and the proceedings and practice upon that filing shall be the same as for the filing of an executor's or administrator's account under the Judicature Act"

      Whatever province you live in, your laws will say something similar.

      Maybe get a different lawyer who does more work in estates.

      Lynne

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  10. My Father passed away 5-years ago. Everything went to my Mother. I was the POA and the Executor of the Will. A few weeks before being totally incoherent and being permanently placed in a Hospital, my Sister had my Mother change the Will, and named her as the POA and Executor. At the time, my Mother had no idea who either of us were, and certainly was not capable of writing out a new Will. She has now been incapacitated for 6 months. During this 6-months, my Sister has sold my Mothers home and all her belongings. She has used upwards of $100,000 on her personal home upgrades, and purchased a new vehicle using these funds. When I question her, she gets exceptionally uspet, and says she has the right to all the funds as she is the POA. She even quite her minimum wage job, and solely uses my Mothers funds to support herself. In my opinion, I assume this is in contravention of Section 331 of the CC. What steps should I take, or is there anything I can do at this point in time? My Mother remains totally incapacitated, and I doubt she will live another 2-3 months. By then, it is safe to assume, the entire Estate will be spent by my Sister. Value is roughly $250,000, with roughly only $150,000 left at this point. Thank-you in advance for any insight / advise.

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    1. Your sister is not entitled to use your mother's funds to support herself, or for any purpose other than paying for your mother's needs.

      You have two options. You can do one or both.

      One is to call the police and ask them to investigate the theft of your mother's funds.

      The other is to call a lawyer and try to get your sister removed by the courts before all the money is gone.

      As I said, you can do both or choose an option depending on the evidence available to you. I agree that if you don't act, there will be nothing left. The fact that she gets upset when you raise the topic is a red flag on its own, as someone who is not doing anything wrong has no reason to freak out if you ask what's happening.

      Lynne

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  11. hi, if we know for sure a POA Stole money and we have the proof . can we report this crime to police ? or get a criminal Estate Lawyer?

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  12. A now deseased lady told me she was being taking advantage of my her POA. It started with he and his wife telling her that no one cared about her and without help as she aged she would end up in a nursing home (her biggest fear) but the only way they would help is she signed her entire estate and life insurance to them. Then took her car making them fully dependent on them for groceries and meds, then they wanted to be added to her bank account, then they started asking for money including a large amount for a new car. None of which the senior wanted to give them but she was scared they would put her in the nursing home or not being her groceries if she didn't do as they say. Despite giving them roughly 50k over the years, they still decided to put her in the home against her will. She told me her will was not her own wishes that it was the wishes of her homecare nurse who is married to the POA. She ended up passing before being able to get to a lawyer. The nurse was the sole beneficiary and inherited everything recently. My big concern now is that this nurse has knkw become POA of another woman (not related to her) who is the first womans sister.. who is in the nursing home. She says she is missing large sums of money from her account. Who do I report this to? The rcmp say it is a civil matter.. I don't know how to report what I feel is senior financial abuse.

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    1. I would suggest talking to the manager of the bank where the lady says there are sums of money missing. Be as specific as you can. If possible, take that lady into the bank yourself to talk to them. Get them to investigate. Most likely they'll freeze everything owned by that thieving caregiver while they trace back what's going on.

      Lynne
      Lynne

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  13. Hi Lynne,

    I was so grateful to find this site. I was wondering if you could help me with a concern:

    My sister and I are both POA's (enduring power of attorney) for my mother who now has late stage dementia and cannot act on her own. I was designated as the primary caregiver through the hospital as I was listed first on the document and there were sufficient concerns about what my sister wanted to do in terms of caring for my mother. Out of anger, she has made our lives and those of the medical staff very difficult and proceeds to do so a year later.
    Recently she came out and visited (stayed in Mom's house) for a few weeks. She proceeded to change the locks on the house and garage without letting me know (this is the second time she's done this and in the first letter from our lawyer roughly 5 months ago, we requested copies of the keys - she's never provided them but has had many opportunities to do so.) She has also taken all of Mom's credit cards and financials, repeatedly locked me out of Mom's online bank account, taken Mom's car and hidden in storage without letting me know until our lawyer reached out (which she also took the keys for and never provided copies), the list goes on. Her behaviour is getting increasingly worse and my lawyer has advised me that at this point she's made no effort in terms of accountability and co-operating and is limiting my ability to care for Mom as I live in the same city with her and am the one they contact with medical needs.

    My question is, after a year of this, I no longer have the funds to bring the petition to court -she's drained me. I care for an epileptic son and money is already tight. As a last resort, is it possible to withdraw funds from Mom's account to do do this petition? It's absolutely not something I want to do, but if I can't care for Mom because of these constant roadblocks, I need to do something in order to reinstate the ability to care for her and her estate. I've made sure to triple check and make sure there are ample funds for her care for the rest of her life and have absolutely no problem being transparent with any money used with the courts - I just need to be able to take care of her. It's gotten to the point where I can't get her clothes, help with the sale of the house, etc. because she is literally restricting me from doing so.

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  14. Very thankfull for your site. My mothers POA was changed in 2002, three years after she had lost her capacity for speech and she had been diagnosed by a psychologist as incapacitated to handle finances. It is likely her Will was also changed then, or since, to exclude my brother and I who are two of mothers three children (her wishes prior to her strokes were for an equal distribution between us three). For years the new POA made visiting mom so uncomfortable and logistically challenging that we eventually gave up. Mom has passed on three months ago now, no announcement has been published, we found out through social media. While in good health (pre-stroke) mom had appointed her lawyer and I as joint POA and me as Executor.

    Eight years ago we (brother and me) tried to have the POA pass accounts in court but we had to drop it because we could not afford it. At that time we had discovered that our brother and his partner (the partner being the POA and who was new to the family) had added their name to some valuable property before selling it in a private deal. We also learned that they were using funds to build up their fishing lodge, over $100,000. The police were not interested, nor was the PGT. Being out of province and mom having nearly zero communication abilities meant I had little chance of keeping up with her.

    Anyway, I have no idea what to do. I haven't money to burn in tracking down accounts that are most likely near zero. I do not know if I am still Executor. They have had about 2.4 million flow through their hands while leaving mom in a $700 a month basement suite with cement stairs, no elevator and a building manager/come security to keep us away from her. She had no therapies nor hobbies. It is believed her only 'fun' outings were trips to their lodge where she was brought up with a car full of liquor paid by her to stock their lodge and where she paid them above their weekly rate for her weeks stay.

    Is this embezzlement/theft by conversion/ or something else? How can we get the OPP to take this seriously? I know that anything I spend on a lawyer will be lost forever, I cannot afford that. Are they just gonna get away with taking, for themselves, well over 1.5 million, assuming the difference was used for moms needs?

    Thank you very much for any thoughts you might share.

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    1. What a terrible story! It makes me both sad and furious that people treat their parents badly in their old age, but I've seen it hundreds of times.

      It is hard to get the police interested in a matter when there is a POA or a will involved. This is because charging a person with a crime would mean interpreting the scope and meaning of their documents, and that's just not their job. That's for judges to do.

      The best results I've seen with involving the police is through contacting an elder abuse unit of the police. I don't know if they have such a thing where you are, but most cities have one. An elder abuse team will take you seriously and investigate what has happened.

      You might also contact a seniors' resource centre in your area to talk to local people about your situation. They tend to have excellent contacts and experience with this sort of situation.

      I know going to court is expensive. I believe that many people who abuse POA documents take that fact into consideration. In other words, they don't think a person is going to be able to afford to stop them. I don't like that about our legal system, but I see it frequently. The really unfortunate part of the way things are structured is that the only way to enforce most laws is by using the courts.

      Lynne

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