If I can prove the POA stole money, do I call the police or a lawyer?

So you're pretty sure that the person acting under an Enduring Power of Attorney has stolen money he or she was meant to be looking after. You can prove it. But how exactly do you do that? What is your first move? A reader recently asked me that question. Here is the question and my response.

"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?"

You can do either of these things, or both. The choices you make will have very different processes and very different results.

If you report the situation to the police, they will start an investigation. This will take a while because they will obtain all relevant information from the court, the banks, witnesses, or whoever else is involved. The person who is being investigated may not even know about it for a while. If the police find the evidence of a crime, they will charge the person with that, setting into motion the criminal court system.

If the police become involved,  you are not in charge of the investigation. You cannot decide to stop it or to push it, as it will be in the hands of other people. If the police don't find enough evidence to proceed, they may advise you to get a lawyer and go through the civil court system instead. I'll talk about that a bit more in a minute.

Criminal charges relating to estates are usually economic crimes such as fraud and theft, though of course the crimes are limited only by the imagination and nerve of the perpetrators. There is a specific crime in our Criminal Code called "Theft by Power of Attorney". If the police lay charges, there will be a trial and you will most likely be called as a witness.

Because these are criminal charges, a person who is convicted of an offence will face the kind of consequences that our criminal system allows. This might be a fine, community service, or even jail time. In the vast majority of crimes relating to estates, there is no recovery of the missing estate funds.

If you choose to hire a lawyer and use the civil court system, things are very different. First, though, I must point out that there really isn't such as thing as a "criminal estate lawyer". As discussed above, if you are using the criminal system it means that you are calling the police and you don't need a lawyer for that.

In the civil law system, the person who has allegedly stolen money is not arrested. They are sued. You would start a lawsuit against them and you would pay a lawyer to do that for you.  You maintain control of the lawsuit and can choose steps along the way such as mediation, settlement, discoveries, etc which may keep the whole thing out of court.

Criminal remedies such as jail time and fines do not apply in the civil system. The outcomes you would ask for would include such things as removing the person from the power of attorney, ordering them to repay funds or return assets to the owner, getting land transfers reversed, and ordering the person to pay your legal costs. As you can see, this is a very different sort of result. In the civil system, you can also use tools such as negotiation and mediation to resolve problems without anyone having to go to court at all.

You might wonder which of these options is the better one for you to pursue. Every case is different so there is no answer that suits everyone. Here are some things to take into consideration:

1. What you must prove. In a criminal case, the prosecutor must prove beyond a reasonable doubt that the person committed the crime. In a civil case, you must prove on a balance of probabilities that the person carried out the activities you're alleging. It is easier to meet the civil standard of proof than it is to meet the criminal standard. You might not really know if your evidence is strong enough until the police have investigated.

2. Cost. If a person is arrested and goes to trial on criminal charges, that does not cost you money. On the other hand, if you hire a lawyer and sue someone, that does cost you money. You might be able to recover some of  your legal costs but that isn't something you can count on. If the police won't lay charges you will have no choice but to use the civil court system. As mentioned above, you can choose to use the civil system because of the standard of proof you must meet.

3. Family relationships. If the person who has allegedly stolen the money is related to you, think carefully before either calling the police or launching a lawsuit. Whichever way you go, it will be with you and your entire family for years to come. Seriously consider alternate dispute resolution methods such as mediation.