Worried Someone Is Misusing a Parent's Power of Attorney? Options in BC

An enduring power of attorney lets a trusted person manage a parent's finances, often when the parent can no longer do so. Most attorneys do the job carefully. When family members see unpaid bills, unexplained transfers or a parent who suddenly cannot get answers about their own money, worry follows quickly.

This article is about a parent who is still alive. It explains what BC's Power of Attorney Act requires of an attorney, how records can be requested, where to report concerns, and when a court application may be needed.

What an attorney must do under BC law

Section 19 of the Power of Attorney Act sets out the core duties. An attorney must act honestly and in good faith, use the care, diligence and skill of a reasonably prudent person, stay within the authority the document gives, and keep prescribed records and produce them for inspection and copying at the request of the adult. When managing the adult's finances, the attorney must act in the adult's best interests, taking into account the adult's current wishes, known beliefs and values, and any directions in the document.

The Act also requires the attorney to keep the adult's property separate from their own (with an exception for property they own jointly), and not to dispose of property the attorney knows is the subject of a specific gift in the adult's will, unless that is necessary to meet the attorney's duties. Under section 20, gifts and loans from the adult's money are tightly limited, and an attorney may receive a gift or loan only if the enduring power of attorney expressly permits it. For a fuller explanation, see what an attorney can and can't do.

Warning signs families often notice

None of these proves misuse on its own, but each is a reason to ask questions:

• Bills, care home fees or property taxes going unpaid when there should be enough money.
• Large withdrawals, transfers to the attorney's own accounts, or new joint accounts.
• Changes to title, beneficiary designations or investments that the parent does not seem to understand.
• Care or comforts being cut back while the parent's savings fall.
• The parent being kept from visitors, or the attorney refusing to answer any questions at all.

Step one: talk to your parent and ask for records

The duty to produce records in section 19 runs to the adult, not to other family members. If your parent is still capable, the most direct route is for your parent to ask the attorney for the records. A capable parent can also change or revoke the enduring power of attorney under section 28, by giving written notice to each attorney.

If your parent cannot make that request, you can still ask the attorney, politely and in writing, for an accounting. Keep in mind that section 33 limits what an attorney may disclose to the extent needed to perform the attorney's duties, report to the Public Guardian and Trustee, or deal with the court, so a refusal is not necessarily a sign of wrongdoing. Keep notes of what you asked, when, and what you were told.

Step two: report your concerns

Under section 34 of the Power of Attorney Act, any person may report to the Public Guardian and Trustee (PGT) if they have reason to believe an attorney is abusing or neglecting the adult, is incapable of acting, or is otherwise failing to comply with the enduring power of attorney or the attorney's duties. The PGT must promptly review the report and may investigate, apply to court, refer the matter under the Adult Guardianship Act, or take other steps. No one can sue you for making a report unless it is false and malicious.

The Adult Guardianship Act offers a second route. Under section 46, anyone with information that an adult is abused or neglected and unable to seek help may report it to a designated agency. The Act's definition of abuse includes deliberate mistreatment that causes damage or loss in respect of the adult's financial affairs. Designated agencies include the regional health authorities, such as Vancouver Coastal Health, and Community Living BC for adults with developmental disabilities. The Act protects the identity of the person who reports. If you believe a crime is happening or someone is in danger, call the police or 9-1-1.

Step three: a court application

Section 36(5) of the Power of Attorney Act allows the PGT, or a person who has made a report to the PGT under section 34, to apply to court. The court may make any order it considers necessary, including terminating all or part of the enduring power of attorney, confirming a change or revocation, or, where the document was made when the adult was incapable or under fraud or undue pressure, declaring it void. The court must consider the adult's wishes, beliefs and values, and cannot make a contrary order unless the adult is incapable and the order is in the adult's best interests. Costs are in the court's discretion and may be ordered paid from the adult's property.

Where no one suitable can manage a parent's affairs, a committee appointment may be the next step; see losing capacity without a power of attorney. Recovering money that has already been taken is a separate question that may require a civil claim.

If your parent has already died

An enduring power of attorney ends on death, and the questions change: the executor, not the former attorney, now controls the estate. If you suspect money was taken before the death, read suspect a sibling took money from mom or dad?.

Concerned about how a parent's finances are being handled? Get advice early

Our wills and estate planning lawyers can review the enduring power of attorney, help you request records in the right way, and advise on a report to the Public Guardian and Trustee or an application to court, working with our litigation team where a claim is needed.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.