Abuse of a POA could cost the perpetrator much more than money – it could also cost them their freedom.
In a recent criminal case, Ontario Superior Court Justice Graeme Mew sentenced a man to one year in prison after a jury found him guilty of the rare charge of “theft by a person holding power of attorney.” The judge also ordered the man to pay restitution of more than $80,000 to the estate of his late common-law partner, who had handed the defendant a continuing power of attorney for her property before she became incapable of handling her own financial affairs.
The ease and speed with which POAs can be drawn up place them easily among the most underrated instruments in the legal world, considering how critical they can become to the grantor’s life.
Other than making a will, Ontario’s Substitute Decisions Act empowers an attorney to do virtually anything the grantor could with their own property – handing the appointee control over everything from the person’s home and its contents to their bank accounts, investments and other financial holdings.
But this extraordinary power also exposes the POA grantor to a significant risk of abuse should they make the wrong choice of attorney. And sadly not everyone rises to the challenge of this kind of responsibility, as the recent Ottawa-area case shows.
According to the ruling, the man met his partner when she was in her 60s and they moved in together around 2010. When she appointed her partner as her POA for property in 2014, the woman was already suffering some symptoms of cognitive decline and within a year, she had entered long-term care with a dementia diagnosis.
Between her admission to the care home and her death in late 2017, the decision says that her partner and attorney for property treated her assets as if they were his own, transferring large sums to his own bank account without explanation and spending her cash for his personal expenses. After declaring bankruptcy, he also applied for a credit card in his partner’s name and ran up debts at an annual rate of almost 20%, the decision adds.
While his defence lawyer asked for a conditional sentence to be served at home, the judge found that a prison sentence was necessary,
“The aggravating factors of your offending that I have identified, as well as the previous difficulties that you have had complying with court orders and with your previous conditional sentence have informed my decision that a just and appropriate sentence requires that you be deprived of your liberty,” the judgment reads.
The potential for abuse is no reason to avoid appointing your own attorneys for property and personal care after careful consideration, since the benefits of properly drafted POAs far outweigh the risks.
In many ways, this case is an outlier when it comes to POA horror stories. Most of the saddest cases I see revolve around the absence of POA appointments by older people who never realized they needed one before it was too late.
POAs are designed to kick in when a person becomes incapable of handling their own affairs, which means you need to have them in place ahead of time. Once a person reaches the point of incapability, they can no longer sign a valid POA, which can leave family members in a very tricky position.
The whole process can become quite expensive if the Office of the Public Guardian and Trustee has to become involved, and the court ends up making final decisions.
Although they don’t get a say over finances, attorneys for personal care also carry heavy responsibilities, taking decisions over the person’s health care broadly, including nutrition, shelter, clothing, hygiene, and safety.
You don’t have to pick the same person to perform both roles, but each document carries extraordinary power, so whoever you do choose to appoint should be someone you have absolute faith in.
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