Tuesday, March 4, 2008

Abuse of Power - Story is the Same Only the Name Changes


When she went to see her elderly dad at his nursing home, the 63-year-old woman, his primary caregiver and keeper of his power of attorney, found he was gone.

Her older brother -- the one her 87-year-old father had never trusted around his finances -- had drawn up and wielded a new power of attorney.

"He took my father to his place," she said, "just because he wanted complete control."

An ex-wife persuaded her elderly former father-in-law to sign away his son's power of attorney to her: When the son fought back, the power of attorney went back and forth twice before it was finally returned to the son for good.

A woman with multiple sclerosis is a patient at a chronic care hospital, bedridden.

Each of her two children would race to the hospital on the first of each month, because that's when her monthly pension payment arrived.

"The first son that got there took her to another lawyer, got another power of attorney, and then cleared all the money out again," said Mann.

"Her comment to me, after the fact was, if her sons don't come to her for money, they never come to her, and this was the only chance that she would have to see them."

Brenda McGillvray, a detective with the Ottawa police three-year-old elder abuse section, says some 70% of the hundreds of cases the department has handled involve financial abuse. An increasingly common number of those involve theft by power of attorney, which is a charge under the Criminal Code.

"You would not believe some of the stuff we see," she said. "It's heartbreaking at times."

When a second power of attorney is drawn up, says McGillvray, it creates all sorts of issues.

"Which power of attorney is the valid one? Are they capable when they made this one?

If the capacity of the subject of the power of attorney is in doubt, a concerned family should make sure the.... financial institution has a copy, or is at least aware of it, and know that any other document presented, even if signed by the principal, is not valid, he explained.

This kind of fraud -- by both strangers and family members -- is so common, "you have to keep on top of it," said Mann.

She adds if it's suspected a power of attorney is being abused, the best thing to do is get a lawyer and apply to a court to have the power of attorney prove they are acting in the best interests of the senior.

"They say our seniors hold the bulk -- about 75% -- of the nation's wealth," she said. "And so that's a good chunk of money, and that's of interest to people, which is unfortunate and sad all at the same time."

Brenda McGillvray, a detective with the Ottawa police elder abuse section, has these tips when drawing up a power of attorney. They can't guard against fraud, but they can make it easier to prove after it happens.

- Insert a triggering clause, or a protection clause, to say specifically when the power of attorney comes into effect. Have it done in a lawyer's office and insert a clause to say it will stand even in the face of subsequent documents.

- Choose a power of attorney you know who will act in your best interest, a person you know well and trust. Not a family member who is putting on pressure or who you don't want to anger or disappoint.

- Appoint a joint, or even multiple, power of attorney. That way, if one person tries to access funds for themselves, another is directly accountable.

Abridged and Edited for E.A. =>>

No comments: