Protecting Canada's Seniors Act

Did you know that a new law called "Protecting Canada's Seniors Act" has now been enacted? To read a commentary about it by Audrey Miller of www.allaboutestates.ca, an expert on seniors' issues, click here.

This new law, also called Bill C-36, makes an amendment to our existing Criminal Code. It does NOT create a new crime of elder abuse. What is does do is add a bit more juice to a judge's power to punish someone who is guilty of elder abuse.

In our Criminal Code, there are a number of things that a judge can take into consideration when deciding what sentence a person should get for a crime. Some are aggravating factors that would cause the judge to give a harsher sentence. These would be things like the accused having a record of similar crimes.

The judge can also take mitigating factors into consideration. These are things that would cause a judge to give a lighter sentence, such as a thief returning what he stole.

The aggravating and mitigating circumstances that a judge can consider are set out in section 718.2 of the Criminal Code. The new law, Bill C-36, adds a new aggravating factor - that being “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation”.

In other words, the judge may consider giving a harsher sentence to someone convicted of elder abuse.

Now we just have to figure out how to make sure that elder abusers actually end up in court. That will be no easy task, partly because so many perpetrators are family members and know exactly how to conceal their actions and persuade their elder family members not to expose them.

For those of you interested in elder abuse issues, I'm adding some new links to the "interesting links" section of this blog. Hope you find them useful.

Federal Government Introduces the Protecting Canada's Seniors Act

Here is some news that will hopefully have a positive impact on our seniors. The Canadian government has introduced a new bill that proposes amendments to Canada's Criminal Code to provide stiffer sentences for crimes against seniors. Click here to read a blog post about this with more details from http://www.allaboutestates.ca/.

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.

Despicable son gets 10 years for ripping off Mom using Power of Attorney

Having just posted a story about how kids pay for the parents' lack of planning, I'm now going to share with you a story about how a parent paid for trusting her own son. Click here to read the story.

You wouldn't think trusting your own kids would be such a devastating mistake, would you?

In my seminars I always talk about true situations in which parents have appointed kids who never should have been allowed anywhere near Mom or Dad's finances. How do these kids get appointed in legal documents anyway? The parents sometimes don't want to hear or believe anything negative about their own children so they go ahead and appoint them anyway. Sometimes it's pressure from the kids. Sometimes parents think it's the law that they must appoint their children. And then there are those - and there are lots of them - who don't really want the kids in charge but are afraid of offending them if they choose someone else under their Power of Attorney.

I certainly don't mean that the poor mother in this story deserved what she got for appointing her son. It's never the parent's fault if a child steals them blind. That responsibility lies squarely on the child, and in this case I'm glad this horrendous man was sentenced to ten years in jail for what he did to his mom.

But do what you can to protect yourself! Any parent who is thinking of making a Power of Attorney and appointing one or more of the kids should think carefully before doing so. Try to assess your child as realistically as possible (I'm a parent too; I know that's hard to do). Try to put the "he'd never take my money; he's my son" thinking aside and assess the situation more like hiring a person for a job. For example, ask yourself some questions about the child you're thinking of appointing. How has the child dealt with money during his or her life? What is his or her current financial status, and how secure is that status? Is the child always asking you for money? Does he or she have a steady income? Has he or she ever been involved in fraud or shady deals? Is he or she a spendthrift?

Asking these questions won't protect every trusting parent, but I certainly hope reading this post will prevent even one person from finding himself or herself penniless at the hands of a greedy child.

Man swallowed mom's rings

People sure are strange. This guy got what he deserved. He stole two very valuable rings from his 81-year-old mother, swallowed them (presumably to avoid being caught) and is in jail waiting for them to make their way through his digestive system. Really, I didn't make this up. Click here to read the story.

ATM fraud gets even more brazen

I wish these scammers would put half as much energy, time and thought into a real job as they do into finding ways to rip off the rest of us. Click here to read the story from Wall Street Journal.

A Stitch in Time Saves Time

This is a thought-provoking article from All About Estates on the Criminal Code section that creates the offence of theft by a person holding a power of attorney. There are also some ideas for pre-empting abuse by certain clauses to be included. Click here to read the article.

Jail term for theft by person holding power of attorney

Not long ago I mentioned in this blog that a person who was acting under an Enduring Power of Attorney could go to jail for theft of the property of the person he or she was supposedly representing. That post has led to several questions about how harshly the law might deal with a thieving Attorney under a Power of Attorney.

First of all, the crime of "Theft by a person holding power of attorney" is a specific crime under section 331 of the Canada Criminal Code. It is considered a specialized form of theft, which is a crime against property. The attorney can be found to have committed this crime if he or she sells, mortgages, pledges or in any other way disposes of some or all of the person's real or personal property. It is also theft if the attorney sold or mortgaged the property legitimately but then kept the proceeds, or did anything at all with the proceeds that he or she was not authorized to do by the Power of Attorney document. So you can see that it's a pretty broad definition.

The thieving Attorney can do jail time, as the punishment is the same as any other kind of theft. If the value of the property stolen is under $5,000, the jail term can be up to two years. If the property is worth more than $5,000, or if the property stolen is a testamentary instrument (e.g. a Will or Codicil), the jail time can be up to 10 years.

The reason many dishonest attorneys get away with abusing their position under the Enduring Power of Attorney is that nobody notices what's going on. And if anyone does notice, they tend not to say anything because they are too polite or feel they don't know enough about it, or they simply don't want to look greedy or nosy.

Can people go to jail for elder abuse?

Elder abuse refers to mistreatment of older persons both by people who are in charge of their care and people who are not in charge of their care. It can range from physical violence to extreme neglect (lack of food, lack of medical attention, etc). It also includes financial abuse such as a child helping himself or herself to an elderly parent's money, or a door-to-door scam artist targeting seniors.

In Canada, criminal offences and their punishments are governed by the Criminal Code, which applies to every province and territory. There is no specific offence of "elder abuse" created by the Criminal Code.

Any criminal offence that applies to Canadians in general obviously applies to seniors as well. Offences that could be charged as a result of mistreatment of seniors include; murder, manslaughter, assault, neglect causing bodily harm, sexual assault, failure to provide necessities of life, making threats, theft, forgery and fraud.

An interesting offence from an elder abuse perspective is the criminal offence of theft by a person holding a Power of Attorney. Perhaps this provision (section 331) should be brought to the attention of all individuals who agree to act as attorney for their parents.

Once a person is convicted of a crime against a senior, the Criminal Code also has a couple of provisions that would affect that person during sentencing. One is the fact that the judge can take into account that an offence is considered worse when it is done by a person in position of trust or power over the victim. The second is that the judge can take into account whether the crime was motivated by the victim's age or disability.

So can a person go to jail for elder abuse? They can, and they do. Here are just a few recent Canadian cases:

R. v. Grant (New Brunswick, 2009) - daughter jailed for failure to provide necessities of life when elderly mother died in circumstances of shameful neglect.

R. v. Nanfo (Ontario, 2008) - daughter jailed for failure to provide necessities of life for elderly mother, who passed away.

R. v. Peterson (Ontario, 2005) - son was convicted of failure to provide necessities of life for his elderly father who did not pass away but whose life was endangered by the son's neglect of him.

And in R. v. Foubert (Ontario, 2009), a worker in a long-term care facility was convicted of assault on a number of elderly residents of the facility.