A power of attorney is most commonly invoked when the grantor (the person who executed the power of attorney) loses capacity. The power of attorney is a legal document that provides the named attorney with the right to make decisions relating to the grantor’s property and/or personal care. Accordingly, the power of attorney is a very powerful document.
Although both attorneys for property and attorneys for personal care have vast discretion and authority to make decisions on behalf of the incapable person, attorneys for property have almost full unfettered access to the vulnerable grantor’s finances. Despite the obvious power imbalance between an attorney and an incapable grantor, and the potential for abuse, there is no regulatory body to monitor an attorney’s actions.
While power of attorney fraud is in clear violation of section 331 of the Criminal Code, justice is often not achieved by pursuing criminal charges. When the victim lacks capacity and cannot be a witness in the proceeding, it may be difficult to establish guilt beyond a reasonable doubt. Further, vulnerable grantors may be reluctant to bring civil proceedings against the attorney for fear that there will be no one left to act on his or her behalf. Thus, attorneys may avoid punishment for their inappropriate and/or illegal behaviour.
Proactive measures, rather than reactive, must be taken to protect the vulnerable. If attorneys were forced to account regularly to an authoritative body, transgressions may be detected earlier.
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