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Thursday, April 4, 2013

When a POA is abusing his position, who do you talk to about it?

The legal system can be pretty intimidating and extremely frustrating when you know you need help but you're not sure who to talk to. The readers who sent me the following note were in exactly that situation, as they were concerned about a family member abusing his authority under a Power of Attorney for an elderly relative:

"We have contacted several government organizations and get referred to another, basically going in circles. We are having some issues with my grandma and her power of attorney.  My cousin has been made power of attorney, and he is a lawyer. He has not only acted as her lawyer while being the POA, but has also done land deals and borrowed money against my grandma’s land.  Right now, he is using her money to fund a residential development, but she is starting to mentally slip so he is doing things without her permission and using her financially. He uses my grandma’s bank accounts as his own, and pays for his gas and groceries constantly, without my grandma knowing. He is in charge of paying for my grandma's long term care facility out of her account, and she should have plenty of money in there but we keep getting calls that checks have bounced. I would just like to know if we have grounds to move forward with legal action or not. And, can my cousin be making deals with my grandmother’s money while he is POA?  We feel very lost and confused in the process of seeking help."

There is no government agency in charge of policing powers of attorney. The government of Canada does have a page about elder abuse, and make no mistake, misusing a power of attorney is elder financial abuse. Here is the link to that page, which lists resources in each province for people to reach out when they want to report abuse.

Independent seniors' advocacy groups can also be wonderful sources of information and support.

Your cousin is financially abusing your grandmother to an appalling extent, assuming that  you're correct about the facts. While the details vary from province to province, the general rules of acting under a power of attorney are the same everywhere. The POA may not use the money as his own. He may not borrow it, take it, mingle it with  his own money or lend it to anyone. He must use it only for the benefit of the person he was appointed to look after. He certainly may not fund building developments, or fail to pay your grandmother's basic bills.

So now, what to do about it? You have options. You can choose one or all.

You may use the civil law system to bring a lawsuit against  your cousin. The outcomes might include your cousin being removed as POA, your cousin being made to produce an accounting, or to repay funds, or to pay damages in the form of money to your grandma. In most provinces, anyone who knows that a POA document is being used in an improper way is allowed to launch a lawsuit.

There is also the criminal law system. This is only available where there has been theft or fraud. In my opinion, both of those things have happened here. In this case, you don't launch a lawsuit; you call the police just as you would for any other crime. The outcomes could include jail time for your cousin, fines against your cousin, an order that he repay the money, and pretty much anything else the judge wants to throw at him.

Quite often, the abusers under POA get away with their fraudulent use of money because they claim that the person they are looking after wanted them to have the money or gave it as a gift. However it's pretty far-fetched to think that your grandma asked your cousin to invest in residential development rather than pay her care costs. I'd say we have a reasonable doubt here.

The third option, which you can use in addition to one or both of the options I've already mentioned, is contacting the law society for the province where your cousin practices. If he has contravened the lawyer's code of practice, the law society will take steps which could include suspension of his license to practice law, costs, or even disbarment.

Remember that whatever option you choose, you will be asked to provide proof of your allegations. I know that you won't have access to things like the contracts for the residential development, but you do have personal knowledge of some of the matters (such as the phone calls you received). You need enough to give reasonable cause for an investigation.

If there is no government agency that oversees powers of attorney, whose job is it? It's up to vigilant family members, such as  you.

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