Power of Attorney Misuse in Ontario: Recovering a Parent's Money

You may have found out that the person named as attorney for property used a parent's money for themselves. It is a painful discovery, and it often comes to light only when a parent becomes seriously ill or dies.

This article explains the duties an attorney owes, how the court can review what they did, what to do if your parent is still living, and what changes after death. Every situation turns on its own facts, so a lawyer should look at yours.

What duties does an attorney for property owe?

An attorney acting under a continuing power of attorney for property is held to the same fiduciary duties as a court-appointed guardian of property. A fiduciary must exercise their powers and duties diligently, honestly, with integrity and in good faith, for the benefit of the incapable person.

They must also keep accounts of all transactions. A guardian is liable for damages that result from a breach of duty, and that liability rule applies to attorneys as well.

Asking the court for accounts

The court can order an attorney or guardian of property to pass all or part of their accounts. Those who may apply include the attorney, the grantor, the guardian, the incapable person, a dependant, the Public Guardian and Trustee, the Children's Lawyer and a judgment creditor. Any other person may apply with the court's leave.

On an application to pass a guardian's accounts, the court may adjust compensation, suspend or replace the guardian, or end the guardianship. Whether a particular family member can apply, and whether leave is needed, is worth confirming with a lawyer.

If your parent is still alive

A person is incapable of managing property if they cannot understand information relevant to a decision about their property, or cannot appreciate the reasonably foreseeable consequences of a decision or lack of one. If your parent is incapable and being harmed, there are protective steps.

• The Public Guardian and Trustee must investigate an allegation that a person is incapable of managing property and that serious adverse effects are happening or may happen.
• In urgent cases, the Public Guardian and Trustee may apply to court to be appointed temporary guardian of property.
• Concerns about harm, abuse or neglect can be reported to the OPGT Investigations line at 1-800-891-0504, or by email to OPGT.Investigations@ontario.ca.
• The court may vary an order appointing a guardian, substitute another person, or terminate the guardianship.

A continuing power of attorney also ends if the court appoints a guardian of property for the grantor or if it is revoked.

What changes after death

A continuing power of attorney for property ends when the grantor dies. After death, the estate trustee, not the former attorney, deals with the property. That means a family member who suspects misuse usually needs to raise it with the estate trustee, or ask the court to act if that is not possible.

Time limits matter. Most claims must be started within two years after the day the claim was discovered, and discovery is the earlier of when the claimant actually knew or when a reasonable person in their circumstances ought to have known. Claims by or against a deceased person's estate for torts or injuries, other than libel and slander, must be started within two years of the death. Which rule fits a claim for misused funds depends on how it is framed, so get advice early.

The two-year period does not run while a claimant is incapable of starting a proceeding because of a physical, mental or psychological condition and has no litigation guardian.

Practical next steps

• Gather the power of attorney document, bank statements, account records and any receipts you can lawfully obtain.
• Note when and how you first learned of the problem, since discovery affects time limits.
• If your parent is alive and at risk, consider contacting the Public Guardian and Trustee.
• If your parent has died, find out who the estate trustee is and what records they hold.
• If land is involved, ask a lawyer whether a certificate of pending litigation makes sense, because starting a proceeding about land is not notice to non-parties until the certificate is issued and registered.
• See a lawyer promptly, because the right route depends on whether your parent is living and on the facts.

Frequently asked questions