Challenging a Power of Attorney Who Took Money in Ontario

You look at a parent's bank records and see large withdrawals or transfers to the person who held their power of attorney. You may feel angry, and unsure what you can actually do. Ontario law gives attorneys strict duties, and there are court tools to review what happened.

Which tool fits depends on whether your parent is still alive, whether they can still manage their affairs, and what the records show. This article explains the main options in plain terms. It is general information, not advice on your case.

What an attorney for property must do

A guardian of property is a fiduciary who must exercise their powers and duties diligently, honestly, with integrity and in good faith for the incapable person's benefit, and must keep accounts of all transactions. Those fiduciary duties and the liability rules also apply to an attorney acting under a continuing power of attorney for property.

A guardian is liable for damages resulting from a breach of duty. Using a parent's money for the attorney's own benefit, without proper authority, is the kind of conduct these duties are aimed at, though whether a particular transaction was a breach depends on the facts.

If your parent is still alive

First, capacity matters. A person is incapable of managing property if they cannot understand information relevant to making a decision about managing their property, or cannot appreciate the reasonably foreseeable consequences of a decision or lack of decision.

The court may order an attorney or guardian of property to pass all or part of their accounts. Besides the attorney, the grantor, the guardian and the incapable person, the persons who may apply include a dependant, the Public Guardian and Trustee, the Children's Lawyer, a judgment creditor and, with leave, any other person. If you are a relative who is not in one of those groups, you may need the court's permission.

The court can also vary a guardianship order, substitute another guardian or terminate the guardianship. On a passing of a guardian's accounts, it may adjust compensation, suspend or replace the guardian, or end the guardianship.

Involving the Public Guardian and Trustee

The Public Guardian and Trustee must investigate any allegation that a person is incapable of managing property and that serious adverse effects are happening or may happen as a result. In urgent cases, it may apply to court to be appointed temporary guardian of property.

Concerns that a person may be incapable and at risk of harm, abuse or neglect can be reported to the OPGT Investigations line, or by email to OPGT.Investigations@ontario.ca. Contact numbers can change, so check the current phone number on the official Public Guardian and Trustee page before you call.

If your parent has died

A continuing power of attorney for property ends when the court appoints a guardian of property for the grantor, when it is revoked, or when the grantor dies. After death, the estate trustee, not the former attorney, deals with the property.

Who can bring a claim to recover money taken during the parent's lifetime depends on the facts, so it is worth confirming with a lawyer. Because the estate trustee, not the former attorney, now deals with the property, how a beneficiary can seek a review of the attorney's past dealings depends on the situation, and a lawyer can confirm the right route. Some claims by or against an estate for torts or injuries must be started within two years of the death. Other claims generally have a two-year period from discovery. Which one applies depends on the claim, so get advice promptly.

If the money went into land, a certificate of pending litigation may be considered. Starting a proceeding about an interest in land is not notice to non-parties until the court issues a certificate and it is registered, and the court may discharge it on certain grounds.

What to do next

• Get a copy of the power of attorney document
• Collect bank, investment and property records for the period of concern
• Make a simple timeline of withdrawals, transfers and who benefited
• Do not confront the attorney in a way that lets records disappear
• Report urgent risk of harm to the OPGT Investigations line
• See an estate litigation lawyer about accounts, recovery and deadlines

If you only learned of the problem recently, note when you found out, because that date can matter to time limits. The two-year period does not run while a claimant is incapable of starting a proceeding because of a condition and has no litigation guardian.

Frequently asked questions