“You would not believe some of the stuff we see”

Fraudsters, Even Family Members, Prey on Elderly
Ann Marie McQueen (ann.marie.mcqueen@sunmedia.ca)
March 2, 2008
The Ottawa Sun
http://ottsun.canoe.ca/News/OttawaAndRegion/2008/03/02/pf-4887288.html
When she went to see her elderly dad at his nursing home, the 63-year-old woman, his primary caregiver and keeper of his power of attorney, found he was gone.

Her older brother — the one her 87-year-old father had never trusted around his finances — had drawn up and wielded a new power of attorney.

“He took my father to his place,” she said, “just because he wanted complete control.”

An ex-wife persuaded her elderly former father-in-law to sign away his son’s power of attorney to her.  When the son fought back, the power of attorney went back and forth twice before it was finally returned to the son for good.

A woman with multiple sclerosis is a patient at a chronic care hospital, bedridden.

Each of her two children would race to the hospital on the first of each month, because that’s when her monthly pension payment arrived.

A social worker finally had enough, and asked Ted Mann, an Ottawa wills and estate attorney and managing partner at Mann & Partners, to get involved.

The woman was happy to let Mann take over, signing the necessary paperwork.

“The first son that got there took her to another lawyer, got another power of attorney, and then cleared all the money out again,” said Mann.

“Her comment to me, after the fact was, if her sons don’t come to her for money, they never come to her, and this was the only chance that she would have to see them.”

Brenda McGillvray, a detective with the Ottawa police three-year-old elder abuse section, says some 70% of the hundreds of cases the department has handled involve financial abuse. An increasingly common number of those involve theft by power of attorney, which is a charge under the Criminal Code.

“You would not believe some of the stuff we see,” she said. “It’s heartbreaking at times.”

When a second power of attorney is drawn up, says McGillvray, it creates all sorts of issues.

“Which power of attorney is the valid one? Are they capable when they made this one? Are they capable when they made this one?” she said.

“Which one was made more recently is the one you would tend to go with, but sometimes that’s when they’re not really capable.”

Pamela Murray is the oldest of four children, and was power of attorney for her father Allan, who died earlier this year after suffering from dementia. Murray never thought it would happen to her, but there she was, on Dec. 28 of last year, watching as the owner of the retirement home she’d placed him in, 75-year-old Goldenrest Lodge’s Jean Lepine, was sentenced to a year of house arrest and two years of probation on three fraud charges.

Lepine had drawn up her own power of attorney, naming herself and getting Allan Murray to sign it, then used it to assume both personal and financial responsibility for him. That this was even possible came as a shock to his daughter.

“I was surprised that the onus was on me,” she says. “That I had a power of attorney, and that some stranger completely unknown to our family could rewrite it, and the law would side with that stranger for a period of time.”

Everyone from the police involved in the investigation to Allan Murray’s lawyer and family doctor, she said, were “cringing,” but the hard truth was that new power of attorney took hold until a police investigation and a court order could prove it was a fraud, she said.

“The police did tell me, if your dad was under 16, if he had Down’s Syndrome, we’d be right there,” said Murray. “But because he’s a grown man, he’s as vulnerable as a five-year-old, but we can’t do anything.”

The provincial Office of the Guardian and Trustee is charged with protecting the rights and interests of mentally incapable adults, and its staff can and do step in to conduct an investigation when it seems an individual is at risk of suffering serious financial or personal harm. But they need to have a complaint first.

“Anyone can do a power of attorney,” says Mann. “It’s a free world.”

It’s a difficult issue, he says, because people can be swayed to sign their power of attorney away, and in order to invalidate the new one, it can ultimately end up in court.

“The best thing they can do is have an assessment, a proper assessment by a provincial assessor of their capacity,” he explained.

If the capacity of the subject of the power of attorney is in doubt, a concerned family should make sure the retirement or nursing home and financial institution has a copy, or is at least aware of it, and know that any other document presented, even if signed by the principal, is not valid, he explained.

This kind of fraud — by both strangers and family members — is so common, “you have to keep on top of it,” said Mann.

McGillvray agrees.

She adds if it’s suspected a power of attorney is being abused, the best thing to do is get a lawyer and apply to a court to have the power of attorney prove they are acting in the best interests of the senior.

“They say our seniors hold the bulk — about 75% — of the nation’s wealth,” she said. “And so that’s a good chunk of money, and that’s of interest to people, which is unfortunate and sad all at the same time.”

USE CAUTION

Brenda McGillvray, a detective with the Ottawa police elder abuse section, has these tips when drawing up a power of attorney. They can’t guard against fraud, but they can make it easier to prove after it happens.

- Insert a triggering clause, or a protection clause, to say specifically when the power of attorney comes into effect. Have it done in a lawyer’s office and insert a clause to say it will stand even in the face of subsequent documents.

- Choose a power of attorney you know who will act in your best interest, a person you know well and trust. Not a family member who is putting on pressure or who you don’t want to anger or disappoint.

- Appoint a joint, or even multiple, power of attorney. That way, if one person tries to access funds for themselves, another is directly accountable.

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