Estate Planning

POA Fraud

By Hull & Hull LLP

As an aging society, we are likely to see an increase in issues surrounding abuse of our elderly. Just simply take a look at our recent estate and trust literature and you will notice that there has been an increase in articles about elder law. 

Recently, I read an article labeled 'Putting the Brakes on POA Fraud.' This article can be found in Briefly Speaking which is the official magazine of the Ontario Bar Association. The article is authored by David Freedman, who is an associate professor at Queen's University faculty of Law.  In his article, Professor Freedman looks at the common situation in which elder abuse is likely to occur wherein he states: 'The prototypical example is the situation in which the elderly parent resides with one child who is to take principal responsibility for the parent's care and who has been given a POA by the parent over his or her assets. Perhaps it is the siblings or a third-party care-giver who complains about the exercise or non-exercise of the POA, but there are many cases in which the assets are misappropriated.' Of course there is a strong public interest in protecting our elderly against financial exploitation, but what can we do?

For those of us who practice in this area of the law, how often have we heard of a family member approaching the police  to make a complaint about an elderly person who has been taken advantage of and being told 'it's a civil matter'? False. Section 331 of the Criminal Code of Canada addresses the issue of 'Theft by a Person Holding a Power of Attorney.' In addition to the Criminal Code, there are civil remedies that are founded on the principles of restitution. Professor Freedman states that regardless of the type of case (criminal or civil) 'the interest is the same, stripping the wrong-doer of any illicit gain and restoring the victim as much as it is possible to do in the circumstances.'

Thank you for reading,

Rick Bickhram

Full post as published by Toronto Estate Law Blog on June 08, 2009 (boomark / email).