There may be as many as 150,000 seniors being victimized in Ontario.(FN1) The elder abuse can take many forms. One common form of elderly abuse is financial. The purpose behind this blog is to provide some information to people on the first steps they might consider when discovering the problem. Let’s first talk about signs of financial elder abuse.
According to the Toronto Police Service Website(FN2) these are some signs to watch out for:
- Has the Power of Attorney been changed?
- Is the elderly person suddenly short of money to pay for living expenses?
- Has the elderly person been brought to sign legal documents they say they don’t understand?
Another red flag of financial abuse of the elderly occurs when large gifts or transfers of money take place. It is normal for children to become joint account holders in order to help parents pay their bill. However, it is suspicious for large chunks of cash to be transferred out of the joint accounts as gifts or expenses unrelated to the real owner of the account. Often the powers of attorney say that their elderly parent gave them this money as a gift. That might be true – but then again one must ask if there was there pressure placed on an elderly vulnerable person to make that gift? The common law(FN3) and Ontario’s Substitute Decisions Act(FN4) makes it very clear that a Power of Attorney is a fiduciary. What that means is that the power of attorney has undertaken to do things on behalf of a potentially vulnerable person and must act exclusively for the benefit of that person putting his interests totally aside. Taking money from an elderly person who is relying on that power of attorney may go against that Power of Attorney’s duty to act diligently, with honesty and integrity, and in good faith for the donor’s benefit. (FN5)
Options if you suspect Elder Abuse In Financial Matters
- Call the Police. The Toronto Police Services Unit has a web site(FN6) which describes their efforts. Their contact numbers for a non emergency is 416 808 7040. For an emergency it is 411. The problem is that while the provincial government recognizes that the financial abuse of the elderly is horribly wrong, it is not always viewed as a crime(FN7). Furthermore, the police will sometimes view accusations against a power of attorney as a family dispute not warranting police charges.
- Call the Office of the Public Guardian and Trustee (FN8). In the context of my practice I have dealt with the Public Guardian and Trustee a lot. They are altruistic and genuinely interested in helping the elderly. The problem is that they are under resourced and view themselves as a last resort. If they are convinced that it is a very serious financial abuse of an elderly person they will investigate a report that a mentally incapable person has been victimized and apply to court to become the abused elderly persons Temporary Guardian of Property. To report this type of serious abuse you can call the OPGT at 416 327 6348.
- Educate yourself on Elder Abuse issues and get Legal Help. An excellent place to start is with the Advocacy Centre for the Elderly (ACE) a community based legal clinic for low income senior citizens. They have an excellent website which will be helpful (http://www.acelaw.ca/) and the lawyers at will talk to people on the phone and if more than a phone call is necessary they may make an appointment. Their phone number is 416-598-2656.
- Hire a Lawyer and seek an accounting. Powers of Attorney have to keep records and receipts of all money they received on behalf of the person under their care(FN9). They also have keep records of the money spent. If you believe an elderly person is being financially abused write down all the facts you are relying upon to support that belief. The lawyer you hire will want to know:
- Who is the power of attorney for property?
- Who has control over the elderly person?
- What is your relationship to that elderly person?
This last point is very important because under the Substitute Decisions Act, the Power of Attorney must keep accounts of all transactions involving property. The courts take this duty very seriously. The court may, on application order that the attorney have to pass his accounts.
But who may apply to the court? The elderly person in question, A dependant of the elderly person, The Public Guardian and Trustee, The Children’s Lawyer, A judgment creditor of the elderly person and Any other person who seeks and obtains permission of the court to apply.
If a court has found that the power of attorney abused their position the court can remove him/her, appoint a new guardian of person. If that Power of Attorney has been unjustly enriched at the expense of the elderly person then the court may order restitution. Now it may be impossible to recover the asset taken in its original form and the court may provide a tracing order
If you need a lawyer it is always a good idea to ensure that the person you hire has expertise in the area. If you do not know someone like that you can contact the Lawyer Referral Service provided by the Law Society of Upper Canada at http://www.lsuc.on.ca/public/a/faqs—lawyer-referral-service/
It would be a mistake to treat this blog as substantive legal advice. For those considering commencing an application to compell an accounting, there is no substitute for hiring a competent lawyer whose own research, analysis and judgment should be canvassed.
Here are some resources which may be of assistance:
- Ontario Ministry of the Attorney General website. See the section on Elder abuse: http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/criminal_law.asp#elder
- Advocacy Centre for the Elderly: http://www.acelaw.ca/services.php
- Public Health Agency of Canada website. This discusses the financial abuse of the elderly and possible ways to stop it. http://www.phac-aspc.gc.ca/ncfv-cnivf/publications/agefinancialab-eng.php
- Ontario’s Seniors’ Secretariat http://www.culture.gov.on.ca/seniors/english/programs/elderabuse/
FN1 http://www.onpea.org/english/contactus/stategytocombatelderabuse.html
FN2 http://www.torontopolice.on.ca/communitymobilization/elderabuse.php
FN3 http://www.cbwagnerlaw.com/pdf/put_your_own_interests_aside.pdf
FN4 http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_92s30_e.htm
FN5 See section 32(1) of the Substitute Decisions Act which provides “A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.”
FN6 http://www.torontopolice.on.ca/communitymobilization/elderabuse.php
FN7 http://www.onpea.org/english/contactus/stategytocombatelderabuse.html Note that certain financial abuse can be a crime. For example, theft, fraud, forgery and extortion are criminal offences.
FN8 See a very good article “Elder Abuse: The Hidden Crime” by ACE which is the Advocacy Centre for the Elderly and Community Legal Education Ontario (CLEO) at http://www.cleo.on.ca/english/pub/onpub/PDF/seniors/elderab.pdf
FN9 The duty to account is set out in the Substitute Decisions Act. There are regulations which set out how these accounts must be maintained. Please see ONTARIO REGULATION 100/96 ACCOUNTS AND RECORDS OF ATTORNEYS AND GUARDIANS http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_960100_e.htm
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The Public Guardian and Trustee (PGT) would not investigate the financial abuse of my late mother. There is suspected misappropriation of over $150,000. On the contray, The PGT, endorsed the POA’s financial accounts despite the fact that they contained no bank statements to support any financial transactions. Nor when endorsing the accounts did they contact me or my lawyer when I had in my possession proof that the accounts contained fraud!
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I will not comment on the specifics of your case. But as a general rule a party who has evidence of fraud may be able to appy for directions to the court or to have the POA pass his accounts under sections 39 and 42 of the Substitute Decisions Act if you are a dependant of the incapable person or attorney under a power of attorney for personal care. If you are not any of the above any other person may apply for leave of the court to apply for directions. Speak to your lawyer about your options. As well, regarding what has to be done for an accounting by a power of attorney see ONTARIO REGULATION 100/96 which can be found on line at http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_960100_e.htm
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Donald it is important to see a competent lawyer for you to get help. The Public Guardian and Trustee may have a different view than you regarding how the POA managed your late mother’s finances. If you want to pursue the matter do not look to a blog for answers – call a lawyer.
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What happens if a child of an elderly person suspects elder abuse by the POA and asks for a “passing of account”, and subsequently the “passing of accounts” deems that the POA has acted correctly. Is the child then responsible to pay all legal fees incurred by the POA?
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Roger it seems from your question that we are dealing with a hypothetical otherwise you would know the answer because the issue of costs would be set out in the order. That being said when it comes to how a court decides about costs each case is different and turns on the facts specific to that case. As a general rule if the court approves of the accounts the power of attorney is not expected to personally subsidize the process and pay the legal fees for obtaining approval. If the power of attorney acted very improperly it may be a different story.
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To respond. I have a lawyer and I am contesting the matter in Court. Unfortunately, opposing counsel has friends at the PGT who she solicited to support my brother’s fraudulent accounts.
Update, my brother has been forced to provide bank statements, invoices and receipts. He doesn’ty have many invoices and receipts however what he does shows he committed furher fraud and invented expenses. He refuses to account for all of my mother’s property and his detailed records are missing his first 7 months of transactions. He now claims he was NOT acting as POA when his records show he was. His unscrupulous lawyer has repeatedly made statements in court that his accounts are accurate and correct using the PGT’s endorsment as proof.
My brother has paid all his litigation fees from my mother’s estate and hide other legal fees for litigation under expenses to other lawyers.
I am also facing bias from judges in favour of lawyers who work in region.
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My 94 year old mother is I believe, being coersed and pressured by my sister her caregiver to give her money. She told me she gives over $700.00 amonth to my sister, and Mum only gets $1,100 a month income. Mum has called me asking me to buy her a tv (hers broke) and a cane for walking with. She said she’d have to “squeeze” the money out of my sister and it willmake her “mad”. The bank called me a bout a year ago and they said they were suspicious becvause my mom kept losing her bank card and they saw my sister rerpeatedly using it instead…any suggestions? Mum refuses a POA…I tried.
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Dear Anita,
As I have responded to many of this blog’s readers, this forum is not meant for legal advice specific to your particular case. Given the scant facts you provide and solicitor client privilege issues, giving you legal advice on line like this is a bad idea. The blog should be used to give readers an educated overview of some issues and provide them with enough information to ask good questions and if they have a problem some direction where they may access help. For example, in the blog I provided you with numbers for organizations who may be able to assist you. Given that I do a lot of work in this area I can help out this way. If you come to the conclusion that you want to hire a lawyer you should do your research about which lawyer has expertise in this area, what the law firm charges and see who best fits your needs. There are a lot of really excellent lawyers in the Toronto area who can help you. Even the best lawyer in Toronto may not be a fit for you. I speak to people all the time about things like this. I accept some of their files and refer others out. The most important thing is for the lawyer you choose to know this area of the law and for him/her to inspire confidence in you and make you feel comfortable in using him/her. Good luck and let me know how it works out. Remember, you can always call the Lawyer Referral Service at the Law Society of Upper Canada. -
Hi there, my sister was power of attorney for our step dad. since 2005 and up until june did not take care of him and neglected him very badly.. no groceries that were not expired over 2 yrs in the house he burnt himself repeatedly with cigarettes( I have video to prove all of this) and drove a car 40 kms with 4 flat tires and had to be brought home by the police… She was warned by other family memebers(8 of us) that he was sick the summer of 2009 and she did nothin to help him . he passed away nov 1rst 2010 and now we find out that he gave her 70,000 dollars to cover a mortgage that he held for her since 2006… He was an alchoholic and had been since the 60′s and she also is an alchoholic since 1995… i mean drink EVERYDAY… and if you gave my step dad whiskey he would do anything you wanted and she knew this…. anyway my question is that can she being power of attorney here in ontario except that gift… especially if he wasnt capable of making such a decision on his own. She also went with him in April to change his will which was changed in Dec 2009 by her and my oldest brother naming them executers… then in April she got mad at my brother for trying to take some money out of my dad’s account and changed it AGAIN !!! I tried contacting police they say its a family matter I need some help with this any advice would be appreciated… She also forged his name to cancel the insurance because he could no longer drive having 10 brain tumors found in may 2010 so as not to upset him.. but…. I think forgery is still against the law in this country. I have talked to the insurance company involed and they said if I get my lawyer to send them a letter to release this document that I could receive a copy to compare signatures even though she told me herself that she did this…. please any help would be nice…
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This is a different type of financial elder abuse. A person talked my parents into business dealing that have turned out only beneficial to him. Both my parents are deceased and now because of his methods we are in law suits with him trying to sue their estates when we have judgment against him. Do any elder abuse lawyers or laws have to do with business elder abuse? we are interested to know if there is any case laws dealing with this type of abuse.
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Amy you already have a lawyer so he or she is likely the best type of person to address your questions to. Some questions you may want to ask include: Did your parents have the capacity to enter into a contract? Even if they had capacity, was there fraud to induce your parents to sign? Did they have independent legal advice? Were they so vulnerable that a court may set aside the contract for a material mispresentation? These are questions the lawyer will address for you and factor them in when advising you whether the contract can be set aside. Good luck.
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