Murder and the joint account

We've all heard the saying that "crime doesn't pay". The law sets up punishments for criminal behaviour that are above and beyond any jail terms or fines the criminal justice system might impose. For example, if you kill someone, the law says that you can't collect on the person's life insurance policy that names you as a beneficiary.

But what about a situation in which one joint bank account owner kills the other? Would the surviving joint bank account owner be entitled to the whole account? Half of the account? None of the account? This situation is fortunately extremely rare so I was interested to see how the courts would deal with it.

Click here to read an article from lawyer Chris Staples in which he looks at the recent New Brunswick case of Doyle v. Doyle. In this case, the widow of the deceased was charged with murdering her husband but at the time the joint account case was heard, she had not yet been either convicted or exonerated. In this case, the court decided that she was entitled to one-half of the joint bank account because she owned half of it already while her husband was alive.

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.

Michigan woman arrrested for embezzling father's funds using Power of Attorney

Here's an example of exactly what not to do when you're appointed under a Power of Attorney. Renee Bullock of Michigan has been arrested and accused of embezzling $140,000 of her father's funds while acting under her father's Power of Attorney. Her father was in a nursing home, and she spent the money on vehicles, tanning and nail salons rather than pay the bills at the nursing home. Honestly, how could anyone think that situation would go undetected? Click here to read more about this story.

I notice from reading the news story that one of the things Ms. Bullock is accused of doing with her father's money is paying back payday loans. I wonder whether her father was aware that she was having money problems. It's never a good idea to appoint someone with money shortages or money management problems as your Power of Attorney. The fact that the person you appoint is one of your children will not change the fact that they will be tempted to use your money for the things they can't afford, as this story illustrates. Elder financial abuse by a family member is, unfortunately, very common.

Although this story is American, the same things happen in Canada. Our criminal law includes a specific offense for those who steal money using a Power of Attorney, as it is considered a position of trust.

Death by forgery: case shows how not to conduct advance care planning

This is one of those completely odd news stories that just make me shake my head. According to a story from the American Academy of Estate Planning Attorneys, a Missouri woman is being accused of 1^st degree murder and forgery. The murder weapon: her father’s power of attorney, allegedly forged, naming herself as the agent. The actual murder: directing that her father’s life-sustaining medical treatment be discontinued. The accused, Susan Elizabeth (“Liz”) Van Note has pleaded not guilty to the charges. I'm very glad that my own law practice has had very few of this kind of client!

To read the rest of this story, and yes it gets weirder, click here.

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.

Two RI men charged in $25 million investment fraud using identities of terminally ill

If this turns out to be true, what a relief to get these two off the streets. A lot of creativity and planning went into the scheme described in this story of two estate planners getting rich off stealing the identities of the terminally ill. Click here to read the article from http://www.businessweek.com/.

Senior with dementia attacks wife with hammer

Last week I spent some time working with an older couple (90 and 87 years old) who have no family or close friends nearby. The wife had a stroke and was taken to hospital. Around the same time, the husband caught pneumonia and was taken to a different hospital. Each of them had named the other as their health-care decision-maker as well as their financial power of attorney. With each of them out of commission, both of them were left with nobody to help them.

This lack of contact with other people is dangerous to older people. Sometimes it leads to the situation I've described above, or other less than ideal situations. For example, seniors might live in their homes with advanced dementia without the proper safeguards, which could be dangerous in a hundred ways. I was very saddened to read this article from the Vancouver Sun which says that an elderly man attacked his wife with a hammer, injuring her severely. They were both suffering from advanced dementia, blindness and deafness according to the article. The wife was taken to the hospital and the husband was taken into police custody.

Who knows what led to the attack. We may never know. All I know is that this poor woman should not have had to suffer this injury, and that an old, blind, deaf man with dementia isn't going to get what he needs in jail. I find the whole story very sad, particularly as I'm sure there are many, many other stories like this just waiting to happen.

Two older people with both physical and mental problems should not be living alone. I don't yet know enough about this case to know whether they have family members who could have stepped in, or whether they had other in-home supports. It's possible they do have family but stubbornly refused to accept help. Most of us know someone who shouldn't live alone but who is too stubborn, fearful or confused to accept the needed assistance.

What if they were alone in the world, as are my clients that I mentioned?  My clients had understood years ago that one of them was going to outlive the other, and had named the trust company where I work as the executor of their estates. When they both landed in hospital, they really didn't know where else to turn so they called us. We were able to visit both of them in hospital, pay their bills, pass messages between them and help them get on a waiting list for an assisted living facility. Not everyone thinks to do this or can afford it. And many just simply refuse to think about what could go wrong.

Each of us needs to be protective about the seniors in our lives and proactive in offering help. This includes understanding that it's dangerous and frightening for people with dementia, especially when that condition is aggravated by physical ailments, to live alone. This idea begs the qustion of whether it is acceptable to force help on older people who refuse it. I believe that sometimes it is ok, when it removes a senior from a dangerous situation.

Attorney accused of stealing $300,000 from a friend's estate

Yet another estate has made the news because of alleged dishonesty. This one is in California. In this case it's a lawyer friend of the deceased who is accused of theft. The case was brought to light by a beneficiary who didn't receive the expected inheritance.

It's not clear to me from reading this article just who is the executor of the estate. Apparently it was not the accused lawyer. Click here to read the story. Note that in the US the word "attorney" in the title means a lawyer, unlike here in Canada where it means a person acting under a Power of Attorney.

Often beneficiaries approach me to ask about their rights when an estate is not being dealt with, or information is being withheld by the executor. Of course they are worried; this story is an example of what sometimes happens when a dishonest person is tempted by estate assets. I sometimes remind beneficiaries that they have both a right and an obligation to watch what is going on in an estate.

Some beneficiaries tell me they feel greedy if they ask outright for their inheritance or ask for explanations for missing funds. But if the beneficiaries aren't going to monitor the executor's actions, who is? Insisting that the estate be wound up in a reasonable time and that you receive your entitlement under the will doesn't make you greedy; it means you are ensuring that the executor carry out the duties as the deceased intended.

Fortunately, most estates that take too long or are conducted in unnecessary secretiveness do not end up with large sums of money missing. They are simply a dog's breakfast because a first-time executor doesn't know what he or she is doing. However, the beneficiaries won't know everything is ok unless they ask.

Attached graphic from http://www.dreamstime.com/.

Ex-broker fined $1-million in theft from widowed client

I'm certainly glad this fellow has been stopped. I wonder if there are other victims as well?

An interesting point raised in this article is that the regulatory body overseeing the brokers has the power to fine the ex-broker but doesn't have the power to make him return the $1.4-million he stole from his client. The ex-broker has also been charged criminally, a procedure that I'll be watching with interest. Click here to read the story from the Globe and Mail.

Twin brothers are real-life Norman Bates

Wow. This story from Fox News is so disturbing in so many ways, I'm having trouble believing it's true. The mother in question, from Texas, was 89 years old and apparently when she fell and couldn't get up, the sons left her on the floor to die. Months went by before neighbours insisted that the police check on her. The sons are charged with murder. Click here to read the story, but be warned: it's ugly.

Calgary couple found guilty in murder of senior

Click here to read the story from CBC News about the conviction of Jason and Tosha Hubler for the murder of 77-year-old Ray Johnston. Glad these two are off the street.

Woman dressed as dead mom arrested in pension plot

This one definitely falls into the "what were they thinking?" department. Click here to read the story from TDN.com.

Bank retiree charged in $200K seniors fraud

Update: I see that the National Post has more information in its story on this event. Click here to read it.

The link below goes to a story on the CBC News website. I don't have any additional information about the situation, but it occurs to me that some of the victims of this crime might well have been suffering from various stages of dementia. If there is anyone out there whose parents are aging and beginning to lose the ability to deal with finances, perhaps you should find out whether you can help your parents out. If they don't want you involved in their finances, or you don't have the time or ability to take care of this, perhaps connect your parents with an accountant or bookkeeper who will keep track of finances, or suggest that your parents have a custodial type of account.

CBC News - Toronto - Bank retiree charged in $200K seniors fraud

I can't believe people do this to their own parents!

I received a call today from a client who was very upset about certain actions taken by one of her children. The client's former husband, Jack*, has been living with one of their three children. Jack is elderly, needs several different medications, and is on an I.V. 24 hours a day. He should be living in a care facility, but refuses to go.

Apparently Jack's daughter and her husband got tired of looking after him. They removed his I.V. and took him to their cabin, an hour and a half outside of town. They left him there alone, without his I.V. and with no medications. He has no transportation. Three days later (today), my client found out about this. She asked her daughter to go retreive Jack but they said they don't want him back. She asked them to take Jack's medication to him, but they said they didn't think he needs it.

The end result of this call is that my client's grand-daughter is going to drive out and pick up Jack, and take him to the nearest hospital. There he can have an I.V. re-inserted and can have medication administered. He will be safe while living arrangements are made.

I'm not a vengeful person, but this situation has me fuming and I hope there are consequences for Jack's daughter and son-in-law. (I can't get involved as a lawyer because I work in-house for the bank). I know it's not easy to look after an elderly relative, especially one with medical needs. Some days you need the patience of a saint. I get that. But you don't just abandon a vulnerable person without the basic necessities and care. If you simply can't do it anymore, make other suitable arrangements.

And if you're the elderly relative digging in your heels about going to live in a care facility, maybe you need to compromise. Maybe it really is the best place for you to live.

I sincerely hope that Jack makes it to the hospital before any real damage is done. And I also hope that if he is not ok, his daughter and son-in-law face criminal charges.

*not his real name, for obvious reasons

Man who beat up N.L. senior gets prison time

Another idiot is off the streets now that 29-year-old Wade Kenneth Manuel has been convicted of beating up a 90-year-old man after breaking into the man's home and robbing him. Oh and Manuel brought his 67-year-old girlfriend along too, who happens to have been the man's caregiver. She's been convicted too. Click on the link below to read the story and celebrate that these cretins are behind bars.


CBC News - Nfld. & Labrador - Man who beat up N.L. senior gets prison time

Supreme Court orders murderer's estate to compensate victim's family

The Supreme Court of Canada has done something new and interesting. They have ordered the estate of a Quebec man who went on a rampage, killing his wife and two young daughters, to make a cash payment to his wife's family. The damages are specifically punitive damages, which are awarded in a lawsuit to punish someone for what they've done, as opposed to the usual kind of damages which only bring the victim back into the same position as before the incident occurred. Previously, judges didn't award punitive damages against an estate, on the thinking that you can't punish someone who is already dead. But the judge in this case - speaking for a unanimous panel of judges - said that society needs a way to express its abhorrence of the crime, even if all we can come up with is awarding money. It's an interesting story, and may set a precedent that will change the face of estate litigation. Click here to read it.

Winnipeg man with Alzheimer's to stay in remand centre two more weeks

This is certainly a tough situation. The man in question here has Alzheimer's, for which he needs help and a new living arrangement, but he also lashed out at someone, for which he was arrested. I really would not want to be the person to sort out all of the social, legal and economic issues this family is facing right now. Click here to read the story.

Dundas senior jailed for defrauding parents

The Hamilton Spectator reports on a case in which a 64-year-old man from Dundas, Ontario was recently jailed when he was convicted of defrauding his elderly parents of hundreds of thousands of dollars using a Power of Attorney. This is one of the worst cases of elder financial abuse I've seen in a while. Incredible! Click here to read the story.