Tag: financial predators
In a recent story entitled, “What can happen when seniors appoint the wrong power of attorney”, CBC News sheds light on a problem that may be on the rise in Canada: attorneys for property preying on elderly incapable people.
The story focuses upon Christine Fisher, a widow and World War Two veteran, and Theresa Gardiner, who became Ms. Fisher’s attorney and then defrauded her of at least $78,000 over the course of three months. The attorney was charged, but after agreeing to pay $20,000 in restitution, the charges were dropped, the police citing an insufficient chance of conviction. The difficulty in convicting predator attorneys, in fact, is all too common, for the key witnesses in such cases often suffer from dementia and other impairments, and therefore struggle to recall or recite the requisite facts in their testimony.
Placing one’s trust in a family member may be safer, but it is not bullet-proof, as evidenced by the case of Royale Klimitz, whose eldest son, David Klimitz, used the power of attorney to drain his mother’s retirement savings from $557,000 to a mere $83. When Ms. Klimitz died shortly after, her other two children alleged it was of a broken heart. Before she died, however, she provided the Crown with two video-taped victim impact statements which contributed to her son’s conviction.
Not all predator attorneys are necessarily evil and insidious. As we have blogged in the past, some predator attorneys are otherwise good people who fall into temptation. This often occurs because being an attorney allows for opportunity to do wrong with little chance of detection; predator attorneys also often rationalize that in doing the work, they are entitled to more desserts; and financial need can be a burden too heavy for some people’s moralities to withstand.
So then, what can elderly people, in arranging their affairs, do to protect themselves? Sections 32, 33, and 35 of the Substitute Decisions Act impose obligations on attorneys to consult with the incapable person’s family members, keep detailed records of the incapable person’s finances, and review the incapable person’s will to ensure that testamentary assets are preserved.
Most importantly, just like picking spouses, business partners, or sports teams, the happiest results flow from the selection of trustworthy people. Similarly, it is best to avoid those with selfish and dishonest tendencies, or who would sway like aspens rather than stand like oaks under economic pressure. So when your sibling cheats on board game night, or your friend constantly “forgets” to bring wine or a dessert to dinner parties, or your child’s favourite conversational topic becomes “my inheritance” – it may be wise to steer well clear and choose another attorney!
Thank you for reading. Have a wonderful day,
Suzana Popovic-Montag and Devin McMurtry
Adult children of aging parents are often faced with important responsibilities. Ensuring that parents are adequately cared for is a task that many children lovingly undertake. As highlighted in this article in Forbes, key substitute decision planning ensures that the transition from independence to dependence, proceeds as smoothly as possible. Such steps should be taken immediately, and prior to the onset of dementia, or other incapacitating disorders, to ensure that one’s ability to provide instructions is unequivocal.
A power of attorney is a legal document that gives someone else the right to act on the grantor’s behalf. With the onset of incapacity, not only may the understanding of finances become increasingly difficult, but vulnerability to financial predators may increase. In fact, it is estimated that approximately 10% of the 1.5 million seniors in Ontario experience elder abuse. As such, allowing an incapacitated parent to maintain the authority to sign cheques and manage finances may be dangerous.
To preserve some degree of control, it is often the case that bank accounts are transferred into joint ownership between an adult child and their parent. This is a common practical step taken to ensure that the child who provides care to their parent has sufficient access to their parent’s funds to satisfy expenses arising. However, given the seminal decision in Pecore v. Pecore (SCC), at the time the bank account is transferred into joint ownership, careful notes must be taken to ensure that the evidence of testamentary intention regarding the account is clarified.
Meeting with an experienced lawyer that can explain the types of powers of attorneys, and the associated responsibilities, ensures the adult child has the appropriate powers to assist their parent. As well, the taking of detailed notes by a lawyer or financial institution is a prudent step to avoid possible estate disputes at a later date. While often we focus our efforts on estate planning, substitute decision planning is equally important.