Theft by Person(s) Holding Power of Attorney Investigation Reference Guide

About Powers of Attorney

Power of Attorney or “POA” is a legal planning tool that mentally capable adults can use to appoint someone else to make decisions for them. Older adults often use POAs to plan for a time, should it occur, that they become mentally incapable of making their own decisions.

Provincial laws govern Powers of Attorney and these laws differ from one province/territory to another throughout Canada. Depending on province/territory, the term Power of Attorney may have different meanings and limits on decision making authority. For example, in British Columbia a Power of Attorney is limited to financial and legal decisions while health and personal care decisions are covered by Representation

Agreements and other incapacity planning documents.  Ontario, on the other hand, allows for a Power of Attorney for  Property (legal and financial affairs) and a Power of Attorney for  Personal Care (health and personal care). 

Officers should refer to the relevant provincial/territorial  legislation for details about the parameters of specific legal  planning tools in each jurisdiction Although not a substitute  for reviewing the legislation, one starting point is the Practical  Guide to Elder Abuse and Neglect Law in Canada at http:// www.bcli.org/ccel/projects/practical-guide-elderabuse-and neglect-law-canada. 

This Theft by Person(s) Holding Power of Attorney Officers  Investigation Guide deals with theft by a person holding a  Power of Attorney pursuant to Section 331 of the Criminal Code  of Canada. The information in this guide applies only to misuse  of a POA for Property, not to a POA for health or personal care,  although the generic term POA is used throughout. 

THEFT BY PERSON HOLDING POWER OF ATTORNEY -  SECTION 331 CC

331. Every one commits theft who, being entrusted,  whether solely or jointly with another person, with a  power of attorney for the sale, mortgage, pledge or other  disposition of real or personal property, fraudulently sells,  mortgages, pledges or otherwise disposes of the property  or any part of it, or fraudulently converts the proceeds of a  sale, mortgage, pledge or other disposition of the property,  or any part of the proceeds, to a purpose other than that for  which he was entrusted by the power of attorney.

MENTAL CAPACITY 

Legislation outlining the definition of mental incapability  varies from province/territory throughout Canada. In general,  every adult is presumed to have capacity to make their own  decisions unless proven otherwise. Capacity is decision and  situation specific rather than global. This means that an adult  may be legally capable of making some decisions but not  others. Capability is about the decision-making process rather  than the outcome. Generally speaking the question is: “Does  the adult understand the information that is relevant to making  a specific decision (i.e. about their property) and appreciate  the consequences of making or not making that decision?” 

KEY QUESTIONS 

The first questions officers should ask themselves are: 

• Is there evidence of money or property missing or  unaccounted for? 
• Does the alleged offender hold power of attorney for  property (or whatever the equivalent of a POA is in  your jurisdiction)? 

If the answer is ‘yes’ to both of these questions, the  investigator should presume the adult donor of the POA  is mentally capable, but be aware while conducting the  investigation of any signs that could indicate otherwise.  Many factors such as certain health issues and the impact of  long term abuse can be mistaken for a lack of mental capacity. 

INVESTIGATION STRATEGIES 

The following strategies for “If the Victim Is Capable”, or  “If the Victim May Be Incapable” are in no particular order.  While each investigation may evolve uniquely, the following  suggestions are important to consider in every situation. 

If Victim Is Capable 

• Visit the victim and obtain financial particulars (e.g.  name of attorney on POA, name of bank, contact info at  branch, account #s, Old Age Security (OAS) and Canada  Pension Plan (CPP), etc. Once authorized by the victim,  look for alternative sources of information (e.g. family  members, friends, lawyer who represented victim when  POA was signed). 
• Obtain from the victim, a completed consent form for the  release of their financial records / bank information. Also  obtain a copy of the POA for Property. 
• Let the victim know they have the right to revoke the POA.  Suggest that the victim get legal advice about how to do  so as soon as possible. 
• Refer the older adult to a local Victim Service Program and/or give the older adult numbers for support resources  in your province/territory (https://www.justice.gc.ca/eng/cj-jp/victims-victimes/vsd-rsv/index.html). 
• Contact financial institution(s) immediately. Speak to an  officer of the financial institution (e.g. branch manager,  customer service manager) and advise them that you  are conducting an investigation into the account(s) of  (victim’s name). Confirm with the banking officer, that  the information you have been given by the older adult  is accurate. 
• Take a formal statement from the victim. Obtain a KGB  video statement (preferable), audio statement or written  statement (be mobile - take a camera to the victim when  resources allow. In some cases, a dying declaration may  be required. Consult your local Crown for guidance).  
• Take the victim’s consent form to their financial  institution(s), government offices (OAS, CPP)  and ask when you will be provided with the pertinent  financial records/evidence. 
• Continue to investigate as required. Identify other  means of obtaining evidence (e.g. production order,  search warrant, other judicial orders of suspect’s  account(s), records from retirement home or long-term  care facility, etc). 
• If there is adequate evidence, recommend or lay the  appropriate theft charge, (e.g. theft over $5,000 or  theft under $5,000) citing s. 331 and/or other relevant  sections of the CC. Additional relevant sections of the CC  with respect to theft by POA or other related planning  tools include 328, 330, 331, 332, 334 and 336. Conduct  your investigation and document evidence in a way that  enables the Crown to recommend an increased penalty  under appropriate sentencing provisions due to age related vulnerability of the victim. 
• If a criminal charge is recommended or laid,  consider having the accused resign as the attorney.  Their resignation could also be a condition of release. 

If the victim may be incapable

Use these strategies in addition to those already noted.  Again they are not presented in any particular order. 

• Obtain the victim’s financial particulars. Look for  alternative sources to gather the victim’s financial  particulars (e.g. family members, friends, lawyer who  represented victim when POA was signed, staff at  facility). Obtain a copy of the POA. 
• Consider enlisting the aid of other agencies (e.g. home  health, Public Guardian and or Trustee or Curator) to  provide support to the victim. 
• Contact financial institution(s) immediately. Request  disclosure of required financial information as per  the relavant privacy legislation and the decision of  Regina vs. Lillico. Financial institution staff can release  general information without warrant under certain  circumstances. Request that the financial institution  exercise ‘due diligence’ in relation to the victim’s  account(s), from this point forward. 
• In some jurisdictions a Public Guardian/Trustee/Curator  may have special asset freezing and/or investigative  powers that apply to abuse. Consider notifying the office  of the Public Guardian/Trustee/Curator. 
• Take a formal statement from victim.  
• Obtain consent from any person named as attorney  in order to retrieve financial records. If consent is  not attainable, consider other means to obtain this  information (e.g. production order, search warrant, other  judicial orders). Attend financial institution(s) to gather  pertinent financial records/evidence. 

This tool is considered to be a promising approach based on front line practice experience. It is an adaptation of the original that was  developed by the Ontario Provincial Police Seniors Assistance Team,  the Halton Regional Police Service and the Hamilton Police Service.