Professionals and lay people have no doubt been part of or heard about the increased awareness of the issues facing the elderly whether vulnerable, capable or not. Most however, are not aware of section 331 of the criminal code.
Section 331 of the Criminal Code of Canada states:
331. Every one commits theft who, being entrusted, whether solely or jointly with another person, with a power of attorney for the sale, mortgage, pledge or other disposition of real or personal property, fraudulently sells, mortgages, pledges or otherwise disposes of the property or any part of it, or fraudulently converts the proceeds of a sale, mortgage, pledge or other disposition of the property, or any part of the proceeds, to a purpose other than that for which he was entrusted by the power of attorney.
This may change as most major police divisions have now created positions such as elder abuse officers or even complete units to investigate complaints of elder abuse whether emotional, physical or financial. Despite the increased activity, research suggests that this is not a new phenomenon (hence the longstanding provision in the criminal code).
Similar investigative powers exist for the Public Guardian and Trustee where a specialized unit has statutory powers under the Substitute Decisions Act to investigate if a person is alleged to be incapable and suffering, or at risk of suffering, “serious adverse effects” of a financial or personal nature as a result.
Does this increased activity and awareness require “more” from practitioners in drafting powers of attorney, or from trusts/institutional officers advising attorneys or grantors, or from the consultants who are increasingly working with the elderly and their families?
Is the problem a lack of understanding or appreciation of the actual power of an attorney (“I don’t want to know” syndrome: the ignorant client). Is the problem just blind faith and trust in the attorney (“he wouldn’t do that to me” syndrome: the denial client). Is the problem a lack of realism (“this will never happen to me” syndrome: the “head in the sand” client).
Regardless, is the solution greater awareness through education and if so how? More education (if correct and accurate) never hurts and more is needed in the area of powers of attorney. Some recent trends are to: spend more time with the client on the document, the process and their effectiveness; recommend that the client arrange for a consultation with you (the advisor) and the named attorney to discuss and review the various duties and obligations; have the client include a “you must see my or a lawyer before you can act as my attorney” clause in the power of attorney; or a family meeting with or without you present. Whether these measures will make a difference it is too early to tell but they are taking place and if done properly provide a way for us to add value to the services that we offer.
Lesson Learned: Take the time now to educate.
Until next time