The Power of Attorney (POA) has long been used as an instrument to assist in protecting one’s property and assets by putting measures in place in advance before they become ill, infirm, or mentally incapable. It is the goal of the Power of Attorney to provide for the effectual and trustworthy management of one’s property and assets. It is the Attorney who is designated in the POA who acts within the conditions and restrictions provided in the POA document. However, there are sometimes situations in which a POA document can be the subject of conflict rather than preventing it.
Typically, a loved one grants a Power of Attorney to, for example, a spouse, child, or sibling. The designated Attorney carries out his or her duties lawfully and pursuant to the conditions and restrictions contained in the POA document. Unfortunately, however, we have seen the POA document used abusively to cause harm to the grantor through fraud and the depletion of wealth. In these circumstances, the Attorney has fallen below the standard of care and breached the fiduciary duty owed to the grantor.
Generally speaking, a POA document is an effective planning and financial management tool. The Ministry of the Attorney General acknowledges the utility and importance of a POA document as they continue to distribute free POA kits to the public. However, issues may arise where the Attorney is not aware of their duties and responsibilities or they blatantly disregard their duties and responsibilities at law. The Substitute Decisions Act, S.O., 1992 c. 30 and the Healthcare Consent Act, 1996, S.O. 1996, c. 2 set out the legislative principles pursuant to which Attorneys must govern themselves.
In short, the POA can be a very useful and practical way to provide for the effectual and efficient management of one’s property and finance in the event the grantor is infirm, ill, or incapable. However, there is a dark side to the POA document when the grantor acts inappropriately or contrary to law to cause the grantor harm through financial mismanagement, misappropriation of funds, or fraud. The POA document can be a tool that could lead to financial elder abuse. It is suspected that a reasonable amount of Attorney inflicted abuse cases that occur unbeknownst to the legal system. It is important to talk about these issues with your family to help to prevent a situation of Attorney inflicted abuse.
For more information, please contact us to book a consultation.