Law Times

Page 10 OctOber 23, 2017 • Law times www.lawtimesnews.com Courts not well equipped to deal with matters quickly Lawyers can help stop abuse of power of attorney BY DALE SMITH For Law Times C ases of elder abuse re- sulting in criminal charges have proven to be rare, and lawyers say that it's frustrating when police don't take matters seriously. "A larger proportion of our practice these days has to do with power of attorney issues of one form or another — more so than 10 years ago," notes Kim- berly Whaley, founding part- ner of Whaley Estate Litigation Partners in Toronto. Whaley notes that the current trend has moved toward par- ties litigating over assets while people are still alive rather than will challenges after a person has died. More common as well are abuses or misuses of power of at- torney documents by those who have decision-making powers. Whaley says that a lot of ques- tions that come to her are about alleged abuses of elders, often by family members, and how to stop them. However, she says that is often complicated because the grantor's capacity is unknown, and if the attorney is truly en- gaging in predatory behaviour, they will make the grantor un- available for assessment. Pushing for court orders for capacity assessments quickly be- comes messy, she says, especially within a family dynamic. For example, she says, one problem may be that people given powers of attorney may not understand their boundaries, like in parent-child relationships. "[Adult children] are real- ly not supposed to take their parents' account and put their money in their own account be- cause it's easier for them to write cheques," says Chuck Merovitz, partner with Merovitz Potechin LLP in Ottawa. "It's really supposed to be their parents' account; they're supposed to use their power of attorney to make the payments from their parents' account." Merovitz adds that this means people with powers of attorney should not borrow from grant- ors' accounts, nor give themselves gifts, barring where there is an es- tablished pattern, like a birthday. "There are restrictions around what a power of attorney is supposed to do, and the main issue to me is educating powers of attorney as to what they can and cannot do," says Merovitz. Whaley says that the courts are not well equipped to deal with these matters quickly or cost effectively, which means that, often, a grantor will die be- fore the issue is resolved, and the cost of litigation can deplete the value of the assets in an estate. Whaley says that criminal fraud trials arising from power of attorney issues are increasing, but they remain quite rare because there is a severe under-reporting of incidents to the police. "The elderly person, no mat- ter if they're capable or just vul- nerable and frail, they don't want to press charges against their children," she says. Whaley, who is the civilian chairwoman of a police services board that advises the chief on elder law issues, says it's difficult to prosecute because it's almost impossible to get evidence. "They're not going to get the evidence that they need from the victim, to get access to investi- gate financial fraud or exploita- tion," says Whaley. "Predators, especially family members, are intent on keeping it hidden because they can." Merovitz says that abuses may not come to light unless a relative is worried about the assets of the grantor. "The usual situation in which a power of attorney is called to account is if there's another sib- ling who doesn't like what's hap- pening, and sometimes it doesn't even happen until the grantor's death," says Merovitz. There has also been a reluc- tance by some police forces to view abuses of power of attorney as a criminal matter, says Holly LeValliant, partner with Eisen Law in Toronto. "Of the hundreds of files I've worked on specifically where I think there is fraud, the police are not helpful," says LeValliant. "The police refuse to become involved if they have any inkling that this could be dealt with in the civil court instead." LeValliant says that this brings up problems of access to justice, where people are unable to afford a private lawyer to go to court to bring a guardianship application just to get a lawyer to go to court on their behalf. "You may have a person who is trying to protect a parent or an- other elderly possible who is out FOCUS Kim Whaley says the current trend has moved toward parties litigating over assets while people are still alive rather than will challenges after a person has died. There are restrictions around what a power of attorney is supposed to do, and the main issue to me is educating powers of attorney as to what they can and cannot do. Chuck Merovitz 9TH ANNUAL DEALING WITH THE LEASE: SPECIALTY LEASES COURSE HIGHLIGHTS • Restaurant leases • Movie theatres • Medical offices leases • Street retail • Pop up and temporary in-line leases • Gas stations • Unique locations TORONTO • WEBINAR | NOVEMBER 22, 2017 LEXPERT EXECUTIVE PROFESSIONAL DEVELOPMENT PROGRAM Register online at www.lexpert.ca/Lease For questions and group rates, please contact: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: cpdcentre.ca • Email: lexpert.questions@thomsonreuters.com DATE & LOCATION Toronto: November 22, 2017 Vantage Venues 150 King St West, 27th Floor, Toronto, ON M5H 1J9 COURSE LEADER Stephen J. 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