The recent arrest of a Thunder Bay man shows there are limits to the authority granted by a power of attorney for property.
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 on the flipside of the coin, this extraordinary power also exposes the POA grantor to a significant risk of abuse should they make the wrong choice of attorney – sadly not everyone rises to the challenge of this kind of responsibility.
However, Canada’s Criminal Code imposes its own restrictions on those acting under a POA for property, via a charge of theft by power of attorney, which prohibits the fraudulent sale of property orconversion of the proceeds for an unintended purpose.
According to a news release, the rare criminal charge got a recent day out as the Thunder Bay Police Service announced the arrest of a 47-year-old man who had been acting as his elderly mother’s attorney for property.
After following up on complaints by concerned citizens who believed he was diverting funds intended for the woman’s daily needs and care facility payments, the police statement accuses the man of making more than 700 fraudulent transactions worth more than $80,000 between 2016 and 2022.
In addition to Theft By Power of Attorney, the man is also charged with Theft Over $5,000 and Fraud Over $5,000, according to the news release.
Still, the potential for abuse should not scare anyone off from appointing their own attorneys for property and personal care after careful consideration, since the benefits of properly drafted POAs far outweigh the risks. And as the Thunder Bay Police Service pointed out, an abusive attorney’s position may actually aid law enforcement in their pursuit of charges.
In many ways, the Thunder Bay 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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