BC Power of Attorney Dispute Lawyers get involved when the person authorized to act for the person who gave them the power of attorney over their affairs is acting contrary to that person’s best interests by acting improperly or deciding an issue that is contrary to the donor’s best interest. Our BC Power of Attorney Dispute Lawyers know things gets even more sinister when the decision directly benefits the person who was granted the power of attorney. Our tenacious BC Power of Attorney Dispute Lawyers know that Powers of Attorneys have been used by fraudsters as a licence to steal! The abuse of Power of Attorneys has reached a crisis stage says Caregiving matters.
BC Power of Attorney Dispute Lawyers -Misusing power of attorney 1-877-602-9900
Seniors First BC describes “A “Power of Attorney” (“POA”) is the legal document through which the donor grants the power to the attorney to ‘step into the donor’s shoes’ and act on their behalf in legal and financial matters. This authority can be limited by the terms of the document.”
Section 19(2) of the BC Power of Attorney Act requires attorneys to act in the donor’s best interests, taking into account the adult’s current wishes, known beliefs and values, and within the authority given in the enduring power of attorney and under any enactment. Section 19(3)(d) of the Power of Attorney Act disallows an attorney from disposing of property that the attorney knows is subject to a specific testamentary gift in the adult’s will, except if the disposition is necessary to comply with the attorney’s duties.
In today’s blog Lorne N MacLean, QC discusses remedies for elderly clients and relatives who suspect fraud through the use of a Power of Attorney is occurring such as:
- starting a lawsuit against the fraudster to obtain Court Orders for tracing and accounting of how money was spent or land transferred and where it is.
- setting aside transfers of land and money.
- asking the court to declare the donor incapacitated and appointing a guardian of the person and estate known as a committee.
BC Power of Attorney Dispute Lawyers 1-877-602-9900
Transferring land or cash from the hapless donor into the “attorney’s” name is a classic example of elder abuse fraud that needs to be prevented. If the person granted who granted the power of attorney is competent they can revoke the power of attorney but in many cases, they are incompetent when the fraud occurs. Our BC Power of Attorney Dispute Lawyers get involved to prevent and if necessary to correct and redress self-serving Power Of Attorney breaches. Diverted and stolen monies can be recovered through litigation. Consider, commencing an immediate court action and promptly obtaining a freezing order of any secreted assets prior to notifying the scammer of the discovery, or contacting The Public Guardian and Trustee or reporting it to the police.
BC Power of Attorney Dispute Lawyers And Public Trustee and Guardian Need To Take Prompt Action
The Public Guardian and Trustee of BC have powers to assist in investigating and stopping elder abuse which includes abuse of a Power of Attorney. Part 3, Division 2 of the BC Power of Attorney Act discusses reporting of abuse of a power of attorney. Section 34(2) permits person to report to the PGT if they have reason to believe:
(a) an adult is, or was at the time, incapable of making, changing or revoking an enduring power of attorney,
(b) fraud, undue pressure or some other form of abuse or neglect is being or was used to induce an adult to make, change or revoke an enduring power of attorney, or
(c) an attorney is
(i) abusing or neglecting the person for whom the attorney is acting,
(ii) incapable of acting as an attorney, or
(iii) otherwise failing to comply with an enduring power of attorney or with the duties of an attorney.
BC Power of Attorney Dispute Lawyers Can Take Action To Set Aside Fraudulent Transfers
In a recent BC Supreme Court case a 96-year-old father- who remained mentally competent- successfully sued his daughter who he granted a power of attorney to- to reverse a transfer of his land she made that ended up in her son’s name. In Galloway v. Barski the Court reviewed the statutory and case law and provides a great summary for BC Power of Attorney Dispute Lawyers and their clients:
[5] On December 1, 2014, Joan used a power of attorney granted by her mother on August 25, 1994, to transfer the property to Jack; she then used Jack’s power of attorney given the same day to transfer the property to Christopher. Christopher executed a Declaration of Bare Trust and Agency Agreement on December 1, 2014, between himself as “Nominee” and Joan as “Attorney” and owner of the Property (“the Trust Agreement”).
[6] Jack argues he is legally competent and wants title to the property put back into his name. Christopher and Joan do not want to transfer legal title to the property to Jack because they believe James has been abusive to Jack and has taken advantage of him over the years he has resided with his father. They fear James will coerce Jack to transfer the property or other assets to him. They want to retain control of the property and want the court to intervene and make orders for Jack’s protection against James, including precluding James from residing with his father.
[25] Neither Jack nor Patricia were consulted or agreed to the transfer of the property to Christopher or into the trust. Further, when the property was transferred, neither the transfer itself nor the Land Title records indicate that Christopher holds title to the property in trust.
[26] On March 17, 2015, Jack and Patricia began this action and, through counsel, demanded the defendants return title to the property. On March 19, 2015, Jack revoked the power of attorney he had granted to Joan. Subsequent demands for the return of the property to Jack and Patricia followed but were ignored.
[27] On the basis of the provisions of the Trust Agreement, the defendants contend that they cannot be compelled to transfer title to the property back to Jack notwithstanding his expressed direction to them to this effect.
[35] Jack has been represented by independent counsel, Mr. Magnus, throughout these proceedings, including at this hearing. He has expressed his wishes and described his relationship with James in affidavits made July 13, 2015, July 31, 2015, and August 6, 2015, all sworn before his counsel.
[36] He argues he is capable of managing his own affairs and does not want to be precluded from the company of his son. He says he invited James to live with him in 2011, and James has since assisted him with cooking, cleaning, laundry, car maintenance and travel. Jack rejects the defendants’ assertions that he has been physically abused, forcibly confined, deprived of the necessities of life, isolated, or that he has suffered psychological or emotional abuse, intimidation, threats, coercion or harassment by James. He further denies James deals with his finances. In sum, Jack denies that James has threatened, bullied, or taken advantage of him or his wife in any way.
[37] Jack argues Joan and Christopher wrongfully transferred Patricia’s interest in the property to himself and compounded their error in transferring his interest in the property into the trust. He relies on s. 27 of the Property Law Act, R.S.B.C. 1996, c. 377, which prohibits an attorney from transferring property to herself unless expressly authorized in the power.
[61] The defendants may honestly believe Jack is at risk at the hands of the James and were thus motivated to use the powers of attorney to transfer Patricia’s interest in the property to Jack and then into Christopher’s name as a nominee and trustee. Joan’s plan to wrest the property from her father happened after she learned he had changed his will to James’ advantage. Her plan was formed after she learned her father changed his will and her intention was possibly to use this trust to frustrate James’ efforts to further influence Jack. Now she wants the court to order James’ ouster from the property.
[62] Her actions, however, contain two significant flaws fatal to the trust and maintaining control of the property. These flaws include her insistence that the Trust Agreement is binding on Jack notwithstanding his contrary views and insulates them from any obligation to transfer title to him, and second, her denial that she received a personal benefit arising from the transfer of the property to the trust.
[63] Regarding the first issue, the Property Law Act provides at s. 27:
A sale, transfer or charge to or in favour of himself or herself by an attorney named in a power of attorney, of land owned by the principal and purporting to be made under the power of attorney, is not valid unless the power of attorney expressly authorizes it or the principal ratifies it.
[64] In circumstances where an attorney has used a power of attorney to confer a benefit on themselves or a family member, s. 27 of the Property Law Act will operate to void that transfer: Egli v. Egli, 2004 BCSC 529 at para. 82, aff’d 2005 BCCA 627.
In the end result because the father had not authorized the transfer and because he was not in reality being held in trust for him the transfer made improperly by his daughter using the Power of Attorney was set aside as invalid.
BC Power of Attorney Dispute Lawyers can help in cases involving Power of Attorney malfeasance, elder abuse, undue influence, adult guardianships, and committee applications. Call us today across BC toll-free at 1-877-602-9900 to meet with us at our 5 offices located in Vancouver, Surrey, Kelowna, Fort St John, and Richmond BC.
