Addressing abuse by an appointed representative
- Explaining grounds for making a report to the Public Guardian and Trustee if you believe that a representative appointed in a Power of Attorney or Representation Agreement is acting improperly.
- Explaining an alternative of taking matters into your own hands to apply to the Court to be appointed a vulnerable senior’s committee, and providing a case example.
Taking advantage of a senior in cognitive decline is a special kind of ugly.
I recommend giving trusted folks the authority to look after your affairs in case you lose the capacity to do so yourself.
In my last column I shared a way for a loved one to give a limited though significant level of authority even after they have lost capacity to look after their own affairs.
But giving others authority over your financial affairs leaves you vulnerable.
That leads to the question of what we can do if we believe that a vulnerable senior is being exploited by someone who should be a trustworthy representative.
Each of the Power of Attorney Act (section 34) and the Representation Agreement Act (section 30) say that a report can be made to the Public Guardian and Trustee (the “PG&T”).
The PG&T is a provincial government appointed independent agency with a mandate that includes protecting the legal, financial, personal and health care interests of adults with diminished capacity.
Grounds for making a report include your belief that a person who appointed, revoked or changed a Power of Attorney (POA) or Representation Agreement (RA) had lacked the capacity to do so.
Another is that you believe that fraud, undue pressure or some other form of abuse or neglect was used to induce someone to make, change or revoke a POA or RA.
And another is that you believe the person appointed as attorney or representative is abusing or neglecting the person they’re supposed to be acting for, or otherwise failing to comply with their duties.
The PG&T must promptly review such a report. They have broad powers to investigate and to take appropriate steps to rectify the situation which might include applying to the court to revoke the authority of the reported representative.
You don’t need to rely on the PG&T, though. You can take matters into your own hands and make your own application to the court pursuant to the Patients Property Act.
The starting point is the Court determining if the vulnerable senior is or is not capable of handling their own affairs. If appropriate, the Court will appoint you as their representative or “committee”.
If you’re interested in a play by play of how that process works, I invite you to read the legal decision of Seifred v. Arnold, 2021 BCSC 278, which can be found here (https://www.bccourts.ca/jdb-txt/sc/21/02/2021BCSC0278.htm).
The case tells a tale that will sound all too familiar to some readers.
Mrs. Seifred’s son Daryl had been her power of attorney and health representative for many years.
Abruptly, without consulting with Daryl, Mrs. Seifred’s two daughters arranged for their mother to appoint them as her representatives instead of Daryl.
They also arranged for her to sell her house and give each of them $50,000.00.
Then they moved her to a different city, poisoned her against her son and restricted his access to her.
The case is much more interesting than my nutshell. The daughters, as it turns out, weren’t all bad and Daryl wasn’t a perfect angel.
The judge went through a list of 10 relevant factors when deciding between Daryl and one of the two daughters as to who would be appointed committee for their mother.
The daughter, a practicing nurse, won out on the “Best advocate for the patient’s medical need” factor. They were a tie for the factor of “Ability to provide love and support to the patient”. But Daryl won out on most of the other factors and he was the one appointed.
I’d list all the factors if I didn’t have a word limit. Read the decision for the full list.
