(From the December 2010 issue of Reader’s Digest) THE VULTURE GENERATION
The elderly and infirm routinely delegate control of their finances to family members but more and more Canadians are abusing that power. Can our aging population trust its own children?
On June 24, 2007, Tony Budkowski got an unexpected call from his mother’s nursing home in Oshawa. The home’s regular contact was Tony’s sister, Heather, but according to the administrator, Heather had left the country. “Instantly, I realized something was amiss,” says Budkowski. “Why didn’t my sister want me to know she’d be away and unavailable to help our mother?”
He also learned the nursing-home fees had gone unpaid for eight months. “I knew my mother had enough to cover her bills, and my sister, who had been given power of attorney to pay these bills, had full access to Mom’s bank accounts.”
Budkowski started to investigate, but was stymied when he tried to obtain his mother’s banking records. He turned to the Durham Regional Police for assistance. Luckily, his file ended up in the hands of Sgt. John Keating, who Budkowski says is “very passionate” about protecting the vulnerable and the elderly. With Keating’s help, he eventually got the bank to hand over the records. “My sister had made off with our mother’s life savings, leaving her with $270.”
Keating arrested the sister, and on June 10, 2008, she was sentenced to two years house arrest and three years probation, and was ordered to repay $92,000. This, says Keating, is one of the harshest convictions ever seen in Ontario’s Durham Region for abuse involving power of attorney (POA).
Budkowski’s mother had Alzheimer’s. Her death earlier this year, at the age of 95, left unanswered questions about her POA document. “Did my mother know what she was signing?” asks Budkowski. “Or was it even her hand that signed it? I have my suspicions.”
POA abuse stories are surfacing in every community across Canada. The Canadian government estimates that as many as ten percent of seniors are affected. “And financial abuse involving powers of attorney is the most rampant,” says Laura Watts, national director of the Canadian Centre for Elder Law in Vancouver. “Abuses are grossly under-reported. Victims are reluctant to come forward if the exploiter is a family member, due to feelings of shame, fear of exposure and even fear of being denied access to grandkids.”
The situation—which Watts describes as “a national crisis”—is forcing legislators, the courts and police to re-evaluate their responses to reports of POA misuse. “I’ve heard over and over from seniors who have taken their complaints to police, only to be told this is a civil matter,” says Brian Trainor, a retired Saskatoon police officer and one of the first in Canada to investigate POA abuse cases. Keating has heard similar complaints, and maintains that a change is necessary. “The whole system needs to be revamped,” he says. “We need to start recognizing theft by POA for what it really is: a crime.”
A power of attorney is a document that legally appoints one individual (the “attorney”) to act on another’s behalf. Each province has its own POA legislation and terminology, but generally speaking, there are two types of POAs: those that grant authority to manage assets and those that cover personal care.
For a POA that grants authority to manage assets, you can decide whether you want it to be continuing or noncontinuing. A continuing POA will stay in effect even if you become mentally incapable, while a noncontinuing POA will not.
Experts warn that too many people assign POAs without first educating themselves or obtaining even minimal legal advice. But unless you hire a qualified expert, such as a trusted lawyer with POA experience, you could be leaving yourself open to POA abuse.
In one case, a Saskatoon financial planner by the name of Hartley Paul Simon garnered the trust of three seniors while advising them on their investments and taxes. He convinced them that, as their financial planner, he was best suited to be granted their POA.
Simon proceeded to defraud the seniors of nearly $200,000 over a period of more than five years, until the financial-services manager at a credit union noticed some unusual activity in one of the victim’s accounts and called police.
“We got a search warrant, and he pleaded guilty,” says Trainor, who investigated the case. In 2008 Simon was sentenced to 18 months in prison. In his sentencing, the judge said, “Trust is one of society’s most valued attributes, and when that trust is breached, the moral fabric of society is severely damaged.”
Although a POA abuser can be anyone, such as an opportunistic caregiver or neighbour, Watts warns that the vast majority of them are immediate family members and, more often than not, the senior’s own children. This leads to unique psychological trauma.
Experts agree that instances of exploitation through POA are increasing, and many forecast a fast-brewing “perfect storm,” fuelled by an aging population and rising rates of dementia. Says Watts, “We’re seeing a huge intergenerational transfer of wealth between today’s elders, a frugal generation who saved their money, and their offspring, the baby boomers.” The latter is a generation renowned for spending more money than they make; many live beyond their means, expecting their retirement to be financed by their inheritance.
Det. Ed Lum, who heads the Crimes Against Seniors Unit for the Hamilton Police Service, points out that in many instances, elderly victims are helpless to defend themselves or to fight back against exploitative POA holders. “Some victims are stripped of their life savings,” he says, referring to a recent case involving a 63-year-old retired truck dispatcher convicted of stealing over $400.000 from his parents’ bank accounts.
“He had been granted power of attorney for both parents when they were already hospitalized,” says Lum.
There is a surprising lack of safeguards against the misuse of POA. Those holding POA in Canada aren’t automatically required to prove that the expenditures they make are in the principal’s best interest, nor are they typically required to show anyone the records of their financial transactions. It’s a situation that makes seniors easy targets.
Cheryl Penner of the RBC Law Group concurs, adding, “I’ve witnessed hundreds of incidents of financial abuse of seniors and theft by power of attorney, perpetrated by adult children, nieces, nephews, grandchildren and others.” Describing these exploiters as “smiling, charming con artists,” she highlights a few of their schemes: “They trick their relatives into adding their names to bank accounts and investment certificates. They withdraw pensions and investment income as soon as they’ve been deposited. They fraudulently use the senior’s bank card or credit card. They even redirect the senior’s mail through Canada Post.”
Another commonly used tactic of POA abusers is to sell or liquidate the senior’s home in order to get their hands on its cash value, says Ann Soden, a Montreal lawyer specializing in elder law, who heads the National Institute of Law, Policy & Aging. Selling someone’s house from under them, she says, often leads to the senior being forced into a nursing home, further enhancing the abuser’s control over them. “It’s all about greed and power and control,” Soden says.
Indeed, the complexity of schemes and scams that can be perpetrated using POAs is limited only by the human imagination. Soden tells of a recent case she was involved in: A son with POA convinced his mother that her seniors’ residence would be forced to charge less if she hid all her money—about $700,000—in his name in an offshore account, which would also bring her a greater rate of return.
Upon his mother’s death, the man claimed the $700,000 had evaporated, due to the global recession, and fled Canada. Soden says the mother’s bank holds records that would likely show the true money trail, “but the bank refuses to divulge these records, hiding behind the technicality that the accounts are no longer in the mother’s name.” As a result, other family members, the beneficiaries of the mother’s will, have had to hire a private investigator to hunt down the elusive son.
Curtailing POA abuse will require a coordinated effort by all segments of society currently serving seniors, including banks, social agencies and medical professionals. Frontline workers—such as the bank employee in the Simon case—need to learn to recognize the early signs of this activity and to report their suspicions; this may call for legislation protecting whistle-blowers. The banking industry will also need to come up with guidelines to facilitate early detection of POA misuse, as well as demand its members co-operate with those alleging POA fraud.
Law enforcement, of course, has the most important role. Sgt. John Keating says police officers need to be taught to treat POA abuse as a criminal act, and hopes judges will start imposing harsher sentences, to create a serious deterrent. Concerning elder abuse, Chief Justice Beverley McLachlin advocates using the law “to minimize the barriers to criminal and civil prosecution, as was done a few decades ago in the case of child abuse.”
University of Western Ontario law professor Robert Solomon says the proceedings for POA cases can become “incredibly expensive, time consuming and acrimonious.” Tony Budkowski vehemently agrees, citing how he has to spend his own money to have his sister removed as the executor of their mother’s estate, even though his sister has been found guilty of stealing. “Only victims of this crime fully understand the gut-wrenching emotion of being victimized twice, first by someone they know and then by the faceless process of trying to get justice.”
HOW TO STOP POWER OF ATTORNEY ABUSE: What can average Canadians do to protect themselves from the misuse of power of attorney? Here are some tips:
- “One size fits all” doesn’t fit all. The standard POA form downloaded from your provincial government website or bought off the shelf usually contains the bare minimum for a POA to be legally recognized. It’s a one-size-fits-all form. Since your situation is unique, consider this form to be nothing more than a canvas on which you will apply your own circumstances and wishes. “You should always get an experienced lawyer for your POA, especially if you have any kind of savings,” says Montreal lawyer Ann Soden.
- Choose your powers carefully. Lay out exactly what powers you want to delegate to the person you’ve given POA. For example, you can prohibit this person from making gifts, taking out loans or selling property you’ve specifically bequeathed. “Consider adding a stipulation that your ‘attorney’ has to provide regular accounting statements to a third party, such as an accountant,” says Soden, “and give this third party the authority to act if improprieties are found.”
- Keep it personal. Never execute a POA document that wasn’t personally and privately initiated by you. Prepare it when you are in good health and before your senior years, since life can bring surprises—such as a car accident, heart attack or devastating illness—at any time. And revisit your POA document every couple of years.
- Get expert legal advice. If you use a lawyer to draft your POA document, be aware he, too, may be providing you with a standard one-size-fits-all form. “When choosing a lawyer, make sure that powers of attorney are part of his regular practice–and preferably he specializes in wills and estate planning,” advises Cynthia Hiebert-Simkin, an executive member of the Canadian Bar Association’s National Wills, Estates and Trusts section.
- Children aren’t angels. Be aware that a POA document may be the catalyst that transforms a good child or a friend into an abuser. Sgt. John Keating of the Durham Regional Police says that in some circumstances, a POA document is tantamount to “waving a juicy bone in front of a hungry dog. The temptation is just too great.”
- Character matters. Consider the repercussions of granting POA to only one person. Will it expedite decision-making or create a POA dictator? “Naming two or more individuals to act jointly can be a means of creating checks and balances,” Soden suggests. But make sure they can work harmoniously. And choose people willing and capable of carrying out the responsibility. Ask yourself how well you know these people, even if they are your children. Do you know only what they want you to know? What’s their real financial situation? Is there substance abuse? Are their marriages on the rocks?
Reprinted with permission from the December 2010 issue of Reader’s Digest magazine. Copyright (c) 2010 by Reader’s Magazines Canada Limited. Further reproduction or distribution strictly prohibited.
Hi. My husband found the original article in the readers digest in a doctors office. This in now 2016 I would like to say that nothing has changed. Doctors, lawyers, pastors, nurses, home care manangers and nurses, RCMP no one will help if the elder has dementia/Alzheimer’s and cannot say for themselves that something (elder abuse) is happening. And as the article mentions, it seems to be getting worse. Everyone I talk to knows someone like these elders but there is nothing we can do. Currently I am in litigation with my siblings for what they did to mom, not only theft and fraud, but abandonment and neglect. It is a pricy situation that is psychologically devastating as well. It’s like everyone is in league together to protect the POA and agent under the Personal Directive. They say I am paranoid that there is no elder abuse and that I am a conspiracy theorist for thinking that everyone is in league. Well, I know what I know. I just don’t get it. Most statistics point to the POA but ive had three lawyers now of my own who have taken my money but all the while were siding with the perpetrators lawyer(s). Unbelievable. Mom’s doctor was in denial because she was also the doctor for the perpetrators. Something different needs to be done and the laws that protect lawyers and doctors etc must be changed as well. All I have wanted is for someone, anyone to hear my side of the story, especially a judge. But the lawyers up till now have purposefully kept it out of the court and have just slid everything through on the quiet.
The article in the Readers Digest mentioned a “special kind of trauma.” And that’s it all right. Not only for my mom but for me as well. Knowing that my siblings will do whatever it takes to keep hold of the finances/assets, lie, manipulate, deceive, get all outsiders on their side, including the bank, mom’s lawyer and her doctor. The complete breach of trust for me, not only my mom, not only of family but all the people that should be helping my mom. THe Vulture Generation hit the nail on the head! Thanks, Kathy
The worst thing a senior citizen can do is put ( jointly and severally )on your power attorney document . In my case with my father , one power attorney over rides the other . Avoid the word ( severally ) . IN CASES OF MORE THEN ONE power of attorney .
My grandmother passed away this past February. Predeceased by both sons. My uncles widow in the family less than 13 yrs managed to have the home signed over to her, lied and said she was joint on one small account and no investments (try joint on all investments and all accounts save for 1 small account!) and had the will changed so she got everything. We found out at the funeral what had happened now the last of a family line has nothing. We live across the country. Can we get help? Will the police do anything at all? No. We even found the previous will, it took months, huge deviation. The vulture generation indeed. Within months of my uncles death and the changes our only regular contact with grandma was stripped away which was the telephone for 3 years. Nothing changes and fraud is everywhere. I am sickened by our system in this country. This is not a civil matter, it’s pure criminal.
I have not seen my father in a year. My older sibling who has POA will not let me see him. As far as I know, the older sibling will not let anyone in my family see him. My children (my fathers grandchildren, and great grandchildren) have also been banned. My other sibling has been banned. My husband has also been banned. My fathers house has been cleared of all his belongings and I didn’t even get a chance to get any of my belongings out of his house. It’s all gone. I have no pictures of family, it was all in his house. I am devastated. I can’t work, I can’t sleep, I can’t eat. I am so heartbroken. I am seeing specialists now to cope. I really miss my father. We had a excellent relationship. My father and I were very close, we spoke with each other at least once a week. I miss our conversations. Why is this still happening in Canada?
I am so sorry to hear the grief that your older sibling has put you through. Sometimes life is just so unfair. As soon as I hear stories of an older person being isolated from family and friends, my mind instantly goes to thoughts of elder abuse. Did you know that isolation is one of the forms of elder abuse? You also have to worry and wonder if your older sibling is also committing financial abuses.
Have you talked with a lawyer about what has happened and perhaps there are ways that something can be done to negotiate with your older sibling for things that you wished you could have and perhaps there could be ways to re-connect with your father with the help of a lawyer or a trained mediator.
And to your question of why this is happening in Canada, my answer is simple. There are evil people everywhere and your situation demonstrates to all of us just how important it is to pick the right person named in our POA documents. I bet your father would be shocked and saddened by this whole situation too.
If the legal route does not work out, than I hope you find peace someday, knowing that while your Father was active in your life, you both were lucky. Cherish those good memories as best possible.
Wake up and smell the roses everyone , a power attorney can rip your parents off the same way as a bank robber can , the only difference , its called legal stealing and the weapon used is the power attorney document .
My wife was appointed Power of Attorney (POA) by her father. When he slide into dementia and the POA was invoked by doctors her two sisters were infuriated and launched a vicious, vindictive and vehement campaign to try to have her recuse herself. My wife was never close to her father however she has looked after his financial affairs, including filing his taxes on an annual basis for over thirty years. I suppose that is why he appointed her, she certainly never requested he appoint her.
You are silent as to what recourse POA’s have when family members are deliberately abusive. Social media allows you to abandon all civility and her siblings have used that route. My wife conceals none of the financial transactions relative to her father’s account and siblings can watch all transactions from his investments and accounts on line.
These relentless missives are impacting her health and I need to know if Alberta Law protects duly and legally appointed POA’s from abuse from family members and siblings.
Hi Forrest:
Since I am not a lawyer, I really cannot answer your question. I think it is worthwhile to speak with a lawyer. Yes, this will cost some money but the peace of mind, knowing that you have done your best to learn the answers, will be well worth it.
Thank you for writing about this but I found your article to be a big let down. Your article title is how to stop power of attorney abuse. It doesn’t tell you how to stop it, only how it may be prevented. Your article is as misleading as section 331 of the criminal code.
Yes i agree, all i have been doing is hitting brick walls to get help. Myself and my brother are poa’s for my father who is in an old age home. I gave all my father’s papers and financial responsibility to my brother 8 years ago. I specifically said to him to just pay his bills and if there is anything left after he passes we will split it. He agreed. We both are in the will and my father has property, 101 acres of land and it is one share each after he passes. My brother has gone along and build a little cabin and has promised 10 acres to the guy who helped him build it!! He also neglected to do his income taxes from 2011. I decided i had better do something so i sent in my poa paper and one month later was able to get info on my father’s taxes. RCA sent me my father’s annual income papers and the forms to have them filled out and directed me to the Salvation Army to have them done up for free. Thank goodness. So right now i have no idea how much my father owes. In the meantime there has been over 10,000 taken out of the joint account of mine and my father’s. He was supposed to take out to pay bills ect. but would dribble here and there out. I have spoken to so many people and it boils down to getting a lawyer to fight and pay thousands of dollars to get anywhere. If elder abuse is a crime, them why is it so hard for them to get justice??? I am on disability and cannot afford lawyers fees and court costs. Something needs to change in the law regarding the elderly. If parents can be investigated for a simple phone call by a stranger to act on abuse towards children, why not for the elderly who have no voice? Now i don’t know what to do. I’m going to have to face the consequences if anything is owed to the government by my father or any other expense that isint know yet because of my brother’s criminal behaviour. I want to take my name off of POA but i feel i cant just leave my father alone completely to my brother who never visits him and could care less. Overburdened in Barrie….
Section 331 of the criminal code is a descriptive of the offence . That’s the confusion. Your charged with theft in the event of power attorney abuse . Figure this one out. My older brother and Sister gave my nephews girlfriend rent receipts ( quote in lieu of ) while my nephew and his common law family lived at my parents , looking after my dad , living for free and collecting ontario works . Their claim was that was payment for looking after my dad. My father paid for everything , heat, puc , cable , taxes internet and my father who suffers from dementia had no clue that this went on, and being isolated at the same time . Even cash money for food was given. They hit the lottery
My father’s Power of Attorney for both Property and for Personal Care named both my sister and I to act jointly which meant neither of us could make decisions on our own. However my sister circumvented the POA for Property and got my Dad to add her to the one bank account that all of his investments flowed through. of course within a short time she started stealing money from his account. I can’t think of anything for despicable than an adult child stealing from an elderly parent.
your article is an eye opener. we are going through so much right now. my husband and his family have been isolated by his sister, her 3 adult children and her live in boyfriend for almost 2 years since we confronted them about where Moms pension went or lack of it. a very long story. Sister in law will never let her mom out of site, we live in London, and they in Mississauga, Ontario. Even the cousins have turned their back on us and say that the money and all is there and leave them alone. they have gone through so much of Moms saving and living off the pension. Mom loved her son and his family so much, and visited freely but know she to have said mean and hurtful things to her 4 other grandkids – youngest is only 9 and he has not seen her in 2 years. So much more to say. please do more
Lawyers have no interest in getting involved in abuse of POA even when it’s there own clients who are being taken advantage of. My mother in law made her only son POA he has closed her savings account unknown to her and has even let bills go up paid and go to collection. My wife informed her mothers lawyer and his response was to bad, he went as far as to say unpaid bill wont affect her credit. well the last time I checked once it goes to collections and it’s not paid it does affect your credit.
My mother in law has dementia and what we have found out about her finances is amazing.
Her youngest son at some point had her sign over the title to her home, his name, she was removed. He was joint on her account and statements indicate he has been busy transferring money to himself.
He had a T2201 (Disability Tax Credit form) completed for his mom and signed it as her Power of Attorney. Sad part of this, her PA is joint, not joint and several, yet the government approved based on his signature signing her tax credits over to him, until she passes away.
He makes sure her nursing home bill gets paid with her pensions and then he cleans out the rest.
We traced back 5 years and found this was most likely taking place even before that time.
He sold the house she signed over to him and he kept all proceeds. In order to avoid income tax he needed to claim her Tax credits, thus the T2201.
He ignores the other Power of Attorney and does not share any information.
We talked to the Elder Abuse line and basically this sums up the conversation “parents do have favorites” OK, not helpful!
I emailed the local Liberal MP for Guelph, talk about a lack of interest, no referral to anyone, just take it to court. Why he was voted in is beyond me!
Well people, she has no more money, he took it………………so how do we pay a lawyer!
The Government, the banks and lawyers need to have safeguards in place to protect the elders.
This one spoke no English and even less understanding of it, so how did the lawyer transfer the deed to her house. Was the son in the room, doing the translating?
No wonder no one reports Elder Abuse.
I am so tired of hearing that it is grandchildren, siblings, children committing financial elder abuse! Not once has this article mentioned the spouse. Well, get ready folks, that seems to be the new trend! And guess who the Judge believes first….yes, the spouse! All the while, dodging her fiduciary duties and conflict of interest to boot! Cost me $30 thousand dollars just to get my Dad the rights he should have had in the first place. Since when can a spouse put her husband with mild dementia, if it is that, into long term care so she can afford a 4 bed, 3 bath house while he sits in one room without a phone…the system is broken! Shame on the Canadian Government for allowing seniors to be treated like this!
I have seen too much I think a society who views those that I seem to respect the most they will help out a neighborgh bring u a casorole when u find out u have cancer drive u to the hospital if u don’t have a car cut your grass cause u are in worse shape than them and everyone with policies up to the Ying yang and just not enough love in an over the top procedure is stealing the estate lawyer told my friend who he assumed thought the residuary estate meant his house that he gave it to his wife your dead in the water and the second wife was cashing in not much he could do lost a limb on dialis but the lawyer is getting the ninty year legacy and all I know is I can’t override the technology the theifs have I’m old fashioned I would like to hit him with a baseball bat lol but he is laughing all the way to the bank and the man lived ninety years a rare and apical kind person who was known to say to his second wife when someone on the street needed money usually a twoniee is good Kathy give this man twenty dollars ofcourse giving his own money was a little hard
My 83 year old mother was a victim of elder abuse and exploitation in the city of Toronto. I am a witness 4 of my mother’s lawyers destroyed 2 wills because I was sole executor of her estate and powers of attorney for care and finances. This was done to cause conflict and destroy my mother. My mother died 3 months of her legal documents were changed. My mother’s doctor targeted her with narcotics. This is what was in the body of my 83 year old mother weighing only 81 pounds when she died Morphine, Acetaminophen, Codeine, Hydromorphone and Hydrocodone. My mother was deprived of nourishment. My mother suffered a infected sacral bedsore. My mother was betrayed by the very people who were to be protecting her from harm. I called for help and the police refused to investigate.
Did I get it right? I read that there are an estimated 16,000 cases of Elderly Abuse in Canada. I am the wife of the one victim. His children wants my marriage annulled and have formally filed an application to the Ontario Supreme Court. They also had my husband declared incapacitated and was able to take all his savings and assets. He is an engineer, and still works on his computer. He is a radio amatuer who can still send 22 words a minute by morse code. He is far from incapacitated.
Then on top of that they executed an Alter-Ego-Trust so that a Will does is rendered useless since all the assets are gone. There is no money for legal support. The agents control it and they are using it for lawyers to block our defense. I am not allowed to stay with my husband since the agents now owns his property. I tried getting support from OPGT, the Capacity Assessment Office, the Police and even municipal councillors. Unless there is physical violence, nobody wants to help.
The agents do not allow him to be assessed again. They paid someone to do it and got the results of what they dictated him to do.
I wish I had been aware how a sibling can turn on their own monther and control their finances so there is more left for the children after her death. My Mother was declared by two of the four siblings to have dementia when it is not so. The third sibling is a good person, but does not do her duties as POA and lets the other two dictate to her. I am 3000 miles away in another province and am tod it’s not up to me, nor is it up to me to interfere as I can’t follow through. It’s a mess! My Mom talks to me a few times a week on the phone and I can afford to only visit her once a year. Information has to be probed out of them and they tell me not to pay attention to anything she says because she is not telling the truth. I need to know who to contact as we are talking about a different province and laws are different and distance is a huge factor. If anyone has any suggestions, please help!
It is 2019 and abuse of POAs are still happening.Help!
My late mother Carmelinda was a victim of elder abuse and exploitation in the city of Toronto. My mother’s own lawyers participated in destroying the legal documents to destroy her. They do this to cause conflict with the courts to generate $ for the lawyers. They medicate, isolate and steal the estate.
I fully agree the police need to look at poa money abuse as a crime not just a civil matter. That cause the family a lot of pain and money. For something as obvious as bank theft.
The banks are closing there eys to the poa loopholes as well. Long time elderly customers have a spending record and the banks know that and do nothing. But if u use your credit card 3 times in one day in 3 cities they are the phone with u ever fast. That happened to me. So y can’t they protect the elderly with that speed too ?. My brother inlaw has spent 300k in 4 years and the local detective looked into it and was told by my brother inlaw to get lost. It ws then the detective told us I give up its a civil matter now. So 30k so far her my brother inlaw the poa ans only been served papers to have passing of accounts. He says he needs 3 months to put reciets together. That we know he does not have. Very awfull process to have to go thru. He is still living in his mother’s house while she is in a long term care facility all while still paying for her house. And in deemed incompetent by him. This is so sad for the elderly in this country. My wife and her sister are told by the home she is in that he not allow them to go in her house or the care home she now lives in 2 hrs away from them. All on purpose by a runaway poa laws. Very disgraceful