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Thursday, April 30, 2020

Why is it so hard to get the police to charge a POA who steals money?

In this post, I want to answer a comment that a reader made on this blog. It was some time ago, but I saved the comment because it addresses a concern that I hear frequently from blog readers as well as from clients in my practice. It was asked in the context of the use of Enduring Powers of Attorney, but the question could just as easily have been asked about an executor or administrator. Here is the question, followed by my comments:

"What I truly don't understand is how if stole $80,000 cash from someone's home I would be charged with theft yet these administrators can steal large sums of money and it is almost impossible to have charges laid."

This is frustrating, I know, but there is a reason for the reluctance of the police to lay charges. If you came into my home and took my money against my wishes, the case is clear. It's not your cash and you have no right of any kind to touch it. I'm standing there to tell the police that I didn't want you to take it.

With  powers of attorney, there is an extra factor that makes the picture quite different. Those people have legal, valid documents that say they can take the money. So the crossing of the line from "mine" to "stolen" is not so clear. If I've signed a document saying that I give you permission to take money out of my account for certain purposes, now we're into more complex questions. What is your purpose in taking it? Did I give you permission for that purpose? Is the POA one of those home-made papers that don't actually make anything clear? What are my true intentions? How do you determine my true intentions if I have dementia? Are you telling the truth when you say that I gave you that money as a thank-you for all your help? What if you've used my funds before and all went well?

As you can see, it's no longer a matter of "he took what is mine". Now the police have to do something they are not trained for or even allowed to do - determine the meaning of legal documents and how they apply. Only judges have the authority to do that. And in our legal system, you can't arrest people when there isn't evidence of a crime. Determining the parameters of a legal document is a matter for the civil courts, not the criminal justice system.

So what is a person who believes theft has occurred supposed to do?

There is a specific section in Canada's Criminal Code called "theft by Power of Attorney". It is a recognized crime and it can be, and is, prosecuted when the facts are all there. It might just be that you have to do a bit more work to bring those charges about than you might otherwise expect to do.

I find that in cities with elder abuse teams on the police force, you are most likely to get the response you want. In my experience, those officers in particular are familiar with issues that complicate the facts, such as dementia, and the documents themselves. They devote themselves to combating elder abuse of all kinds, including financial abuse. They'll investigate each claim thoroughly by looking at the paperwork, getting bank statements, interviewing people, etc.

Whether or not you have access to an elder abuse team, your complaint that there has been criminal activity is more likely to be acted upon if you are able to produce clear evidence. Simply saying "he stole it, I know it" is not going to cut it. An example I saw recently was that the POA purchased a riding lawn mower with the funds belonging to the person he was supposedly looking after. The older person had no lawn. She had lived in a long-term care facility for some time and wouldn't have been physically able to use the mower even if she wanted to. So why was he buying a riding mower using her money when his job is to only use her money for her benefit?

Also remember that if you don't have the evidence to have criminal charges laid, you can still draw on the civil court system. The problem there, of course, is money. Lawsuits are expensive. Keep in mind though that very, very few matters get all the way to a trial. The vast majority are resolved between the parties (usually with help from their lawyers) along the way. Recently I dealt with a case where a POA attempted to change the designation on a life insurance policy. She honestly didn't know she wasn't allowed to do that until someone in the family stepped in and stopped her using the civil law system.

As an aside, if you want to get a preview of what a lawsuit would really be like, maybe take a look at my book called Contesting a Will Without a Lawyer, available from the publisher in paperback or as an e-book, or on Amazon. It has tons of specific information about filing documents, court fees, doing legal research, when and how to make a settlement offer, demand letters, representing yourself in court, etc.

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