A few weeks ago, I came across a media article about elder financial abuse involving the use of a power of attorney. In my view, this issue has even greater relevance today in light of the current COVID-19 lockdown, and the resulting physical isolation of our vulnerable seniors.
In 2016, 94-year-old Christina Fisher was living independently in an apartment in downtown Toronto. Christina was in the early stages of dementia when Theresa Gardiner, a former colleague from decades ago, showed up to offer Christina some help. Theresa also offered Christina companionship; Theresa would pick up Christina to take her grocery shopping, out to dinner, or to see a movie. Not long after, Christina granted Theresa a power of attorney for property.
Theresa then moved Christina out of her apartment and into a retirement home for seniors. Nancy Lewis, Theresa’s long-time friend, felt uneasy about this arrangement and suggested to Theresa that another person be added to the power of attorney to monitor accounts (although only Christina could do so provided she was capable). Theresa refused.
In response, Nancy and another family member asked Christina if she wanted them to review her accounts. Christina agreed, but did not have her bank card. Nancy investigated further and found dozens of notes that Christina had written about Theresa taking her money and moving her investments around. One note stated: “Theresa Gardiner has to be stopped from getting control of all my banking accounts,” while another note read: “Theresa Gardiner has my bank card and refused to return it, have the bank card cancelled.”
When Nancy eventually gained access to Theresa’s accounts, she discovered that Theresa had written various cheques to herself from Christina’s account totaling $78,000. Theresa claimed that Christina wanted her to have the money, to assist Theresa in caring for her terminally ill husband.
In July 2019, Theresa was charged with three counts of theft under $5,000 and three counts of theft over $5,000. In November 2019, the Crown withdrew the more serious charges in exchange for Theresa’s agreement to pay $20,000 in restitution, with no admission of guilt. Given Christina’s stage of dementia and likely inability and/or unwillingness to testify against Theresa, it is likely the charges were withdrawn as there was no reasonable prospect of conviction. Moreover, Theresa has apparently still not repaid the restitution.
The Take Away
The withdrawal of the criminal charges against Theresa was a disappointing outcome. Moreover, the difficulty in prosecuting power of attorney misconduct sends a message to the public and to the elderly, particularly those who may be suffering from cognitive issues, that there may well be no criminal consequences for powers of attorney who abuse their power. In addition, there is no regulatory body overseeing the conduct of powers of attorney or sanctioning them for financial improprieties. If criminal proceedings are not possible, the only remedy for the likely incapable victim is through the civil courts, which are currently closed for non-urgent matters (and whether the above conduct would qualify as “urgent” has yet to be confirmed).
As such, the type of financial abuse experienced in this case is now all the more likely to continue and perhaps increase during the COVID-19 pandemic, with seniors in self-isolation and retirement homes barring visitors, leaving little oversight over the conduct of powers of attorney. This is an unsatisfactory situation and reminds all of us to prepare powers of attorneys for property when we are capable of doing so and to select trustworthy individuals or reputable trust companies to act in such roles. It is also a time when we must watch out for each other and for our vulnerable elders in particular.
Stay well, everyone.