As the population of British Columbia ages, more families are turning to powers of attorney to help manage the financial affairs of aging parents and loved ones. A power of attorney can be an invaluable tool for protecting an older adult’s interests when they can no longer manage independently. However, when misused, this same legal instrument can become a weapon for elder abuse, resulting in financial harm, emotional trauma, and lasting damage to family relationships.
Understanding Powers of Attorney in British Columbia
In British Columbia, a power of attorney (POA) is a legal document that grants one person (the “attorney”) the authority to act on behalf of another person (the “adult” or “donor”) regarding financial and legal matters. The adult must be capable when making the POA, and the attorney is expected to act in the adult’s best interests and per their wishes.
There are two main types of powers of attorney in B.C.:
- General Power of Attorney, which ends if the adult becomes mentally incapable.
- Enduring Power of Attorney, which remains valid even after the adult loses capacity.
While enduring powers of attorney are crucial for long-term planning, they can also create opportunities for abuse if not adequately monitored or limited.
The Link Between Powers of Attorney and Elder Financial Abuse
Elder abuse through the misuse of a POA is often a form of financial exploitation. It occurs when the appointed attorney takes advantage of their legal authority to act in ways that benefit themselves rather than the adult they are supposed to protect. This can include misappropriating funds, selling property without permission, transferring assets, or isolating the elder from family members to prevent detection.
In many cases, the abuse is perpetrated by a family member or close friend, which can complicate detection and reporting. Older adults may be reluctant to accuse their loved ones or may lack the capacity to recognize that abuse is taking place. In some situations, the adult may have trusted the attorney implicitly, making it difficult for outsiders to intervene.
Common Signs of Abuse Involving Powers of Attorney
Although elder abuse is not always easy to spot, some signs may suggest that a power of attorney is being misused:
- Sudden or unexplained changes in bank accounts, investments, or property titles
- Unusual transactions or ATM withdrawals
- The adult is unaware of their financial situation or unable to access funds
- The attorney is secretive or controlling, preventing others from contacting the adult
- The adult appears fearful, anxious, or isolated
- Absence of receipts or accounting from the attorney despite repeated requests
When suspicions arise, timely legal action is essential to protect the elder’s assets and dignity.
Legal Duties of Attorneys Under B.C. Law
British Columbia’s Power of Attorney Act imposes fiduciary duties on attorneys. They must:
- Act honestly and in good faith
- Use the adult’s assets for the adult’s benefit
- Keep proper records of financial transactions
- Avoid conflicts of interest
- Keep the adult’s assets separate from their own
Failure to comply with these duties can result in civil liability, including being ordered to return funds or pay damages. In egregious cases, criminal charges for theft, fraud, or breach of trust may also apply.
Legal Remedies for Power of Attorney Abuse in British Columbia
If an attorney is suspected of abusing their position, B.C. law provides several legal mechanisms to address the situation.
1. Revoking the Power of Attorney
If the adult is still mentally capable, they may revoke the power of attorney at any time. The revocation must be in writing, signed, witnessed, and communicated to the attorney and any relevant third parties, such as banks or financial institutions.
2. Court Review and Removal of the Attorney
Under section 35 of the Power of Attorney Act, concerned parties may apply to the Public Guardian and Trustee of BC to investigate an attorney’s conduct. The Public Guardian and Trustee or a concerned party can also take certain steps to remedy abuse by applying to the court for assistance. Remedies may include:
- Requiring the attorney to pass their accounts
- Ordering the return of misappropriated funds or property
- Revoking the POA and appointing a new attorney or representative
- Awarding compensation for breaches of fiduciary duty
3. Criminal Charges
If the abuse involves theft, fraud, or undue influence, criminal charges may be laid under the Criminal Code of Canada. Law enforcement should be contacted in situations where a crime is suspected. However, it is essential to understand that the threshold for criminal charges is higher than for civil remedies, and not all abuse cases will result in prosecution.
Best Practices in Creating Powers of Attorney
The risk of abuse can often be reduced through careful planning and drafting the POA document. Some strategies include:
- Appointing more than one attorney to act jointly, requiring agreement on decisions
- Limiting the scope of authority (e.g., excluding real estate transactions)
- Requiring regular accounting to a third party or family member
- Inserting a clause that requires the attorney to consult with certain people before making significant decisions
- Using a “springing” power of attorney, which only takes effect upon incapacity as confirmed by a medical professional
Vigilance and Legal Support Are Essential for Preventing Elder Abuse
The misuse of powers of attorney to perpetrate elder abuse is a troubling and growing issue in British Columbia. While POAs are essential tools for managing aging and incapacity, they can be misused when proper safeguards are not in place. Families, financial institutions, and legal professionals all have a role in ensuring that powers of attorney are used appropriately and in the best interests of vulnerable adults.
Meridian Law Group: Experienced Vancouver Elder Abuse Lawyers
If you suspect elder abuse or need help disputing a power of attorney, consult the experienced estate litigation lawyers at Meridian Law Group. Protecting older adults’ rights, dignity, and legacy often requires swift, decisive legal action. Our team is here to help you identify, investigate, and challenge abuse of power of attorney. Contact us today at (604) 687-2277 or reach out online to book a confidential consultation today.
