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Friday, March 6, 2020

Woman uses power of attorney to take $78,000 from 97-year-old with dementia

In Ontario, a woman named Theresa Gardiner was charged with theft when it was discovered that she had taken $78,000 from a 97-year-old woman named Christine Fisher. Gardiner had Power of Attorney over Fisher's finances. She admitted to taking the funds but said that Fisher had wanted her to have the money to help with a financial crunch.

A friend of Mrs. Fisher tried to intervene and discovered that in place of a bank card and credit card, Mrs. Fisher had notes on small pieces of paper saying that "Gardiner has my cards and won't give them back" and other similar messages. Other scraps like this were posted all over Mrs Fisher's residence in the long-term care facility where she lives. Mrs. Fisher has dementia, which is why an Enduring Power of Attorney was in effect in the first place. You can read the story in more detail on www.cbc.ca by clicking here.

The stories told by the two sides are very different versions of what might have happened. Mrs. Gardiner says that the money was given to her voluntarily. Fisher's friend says that it was not, and that Mrs. Gardiner was taking advantage. Cases like these are so very tough to figure out because the purported victim has dementia. This involves confusion, disorientation, and difficulty with memory. I've acted for elderly people in the middle of these cases and the endless questions about the money can be unbelievably distressing for them.

I know that many people are leaping to the conclusion that Mrs. Gardiner has been taking advantage and that she should be prosecuted. To be honest, I lean that way myself. I hate seeing people taking advantage of trusting seniors and I don't mind seeing them taken to jail. We all know by now that someone acting under a Power of Attorney cannot take money from the individual they are safeguarding unless that individual specifically says so. But I have spent enough time with clients with dementia and their families to know that it isn't that simple. Many people with dementia have lucid times in which they can reason and make decisions. Perhaps Mrs. Fisher gave the funds during one of those times and then forgot about it. I also know that dementia can sometimes cause an individual to turn against someone they loved and trusted prior to dementia setting in.

In my view, it's impossible to determine whether Mrs. Fisher wanted Mrs. Gardiner to have these funds (at least on the facts reported so far). It boils down to the fact that Mrs. Gardiner should not have accepted any funds no matter how lucid Mrs. Fisher might have been at a specific point. She must have known how it would look. She must have known that Mrs. Fisher would forget and then become upset when she realized her money was gone. The optics of the situation put Mrs. Gardiner in a very poor light, to put it mildly.

I might add that a follow-up story about Mrs. Gardiner indicates that she owns a home in Toronto and a lakefront property worth as much as $1,000,000, so she isn't exactly on the skids. You can see the follow-up story here. Again, this evidence, on the face of it, seems to work against Mrs. Gardiner, though it doesn't say much about her cash flow or whether she tried to sell the property to resolve her own financial problems.

So what happened to Mrs. Gardiner out of all this? She agreed to repay $20,000 (the amount of a cheque she wrote to herself from Mrs. Fisher's account) without admitting any liability. The crown then dropped the charges against her, believing that it would be nearly impossible to secure a conviction against her.

This is an extremely frustrating case. It's so difficult to advance elder financial abuse cases through the criminal courts because of the challenge I mentioned in this post - victims who cannot give reliable testimony.

As a concluding remark, the Enduring Power of Attorney was a form that Mrs. Gardiner downloaded from the internet and got Mrs. Fisher to sign. Nobody asked a lawyer how to protect Mrs. Gardiner. Yes, there is plenty we can do to strengthen these documents and involve a second set of eyes on a senior's accounts. Just don't sign legal documents without a lawyer's advice, or you could be the next Mrs. Fisher.




2 comments:


  1. Excellent post. I am dealing with a situation that is somewhat similar. It is one where a beneficiary claims that a mother gave a GIC. This type of claim got to be quite common and the law stepped in. Look up Pecore vs Pecore. I believe the law changed in 2007. Lynne, perhaps you could give your thoughts re this.
    In my case. There is no mention of this in the 'Will' or any other written material. The beneficiary's clever lawyer in a letter to me uses the word 'directive' from the mother'. TBC.

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    Replies
    1. You're right that this type of claim used to be quite common, and in fact it still is. The difference is that now we have Pecore and subsequent cases to use as defence against those claims.

      I successfully used the Pecore case and similar ones in a case about a year and a half ago, for the first time in my province. It has been used successfully now in pretty much all provinces.

      In cases where a parent, grandparent, or friend is giving someone ownership of an asset all they have to do is document it somehow. Nobody ever does, so if they don't get the asset due to lack of proof, that's their own fault.

      Lynne

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