How to Report Abuse by an Attorney Under a Power of Attorney in BC

You may have noticed something that does not sit right. A parent's money seems to be disappearing, bills are going unpaid, or the person managing their affairs will not explain anything. If that person is acting as an attorney under an enduring power of attorney, British Columbia has several routes for raising the alarm.

This article explains who you can report to, what each route does, what evidence is useful to gather, and what the court can do. It is general information, not advice about your situation, and a lawyer can help you choose the right step.

This article covers the law of British Columbia.

What an attorney is and is not allowed to do

An attorney under an enduring power of attorney manages the adult's financial affairs. Knowing the rules helps you recognize when something may be wrong.

• An attorney must act honestly and in good faith, use the care, diligence and skill of a reasonably prudent person, and keep the prescribed records.
• An attorney must keep the adult's property separate from their own, although property the two own jointly is an exception unless the document says otherwise.
• An attorney must not be paid unless the document expressly authorizes payment and sets the amount or rate, though reasonable expenses properly incurred can be reimbursed.
• An attorney must not make or change a will for the adult, and any such will or change has no force or effect.
• Gifts and loans are allowed only if the document permits them or, if it does not, only if strict conditions are met, including a yearly cap of the lesser of 10% of the adult's taxable income for the previous year and $5 000.

Something that looks suspicious may have an innocent explanation, such as a reimbursed expense. Still, you do not need proof before you raise a concern.

Where you can report

There is no single door. Which one fits depends on what you have seen.

Reports to the Public Guardian and Trustee may also cover fraud or undue pressure used to get the adult to make, change or revoke the document.

Protections for the person who reports

Many people hold back because they fear a family fight or a lawsuit. No action for damages lies against a person who reports to the Public Guardian and Trustee, unless they acted falsely and maliciously. The same is true for reports to a designated agency, and the reporter's identity is protected.

Abuse under the Adult Guardianship Act includes deliberate mistreatment that causes financial harm. That matters because financial misuse can qualify even where no physical harm is involved.

What evidence to gather

You usually will not have full access to the adult's accounts, so focus on what you can safely observe and record. Attorneys are required to keep a list of the adult's property and liabilities, accounts of what they do, and the invoices and bank statements needed for full accounts. Gaps in those records can be telling.

• A dated written timeline of what you noticed, such as unpaid bills, sold property or sudden changes in lifestyle.
• A copy of the enduring power of attorney, if you can lawfully see it, to check what it allows, including any payment or gift terms.
• Any letters, statements or messages you have received in your own name that show unusual transactions.
• Names of other people who saw the same things.
• Notes of any request for information that was refused.

Do not break into accounts or take documents you are not entitled to see. An attorney generally must not disclose information obtained as attorney, except as needed for their duties, a report to the Public Guardian and Trustee, or court proceedings. A court may also order the release of information, and any person may apply for an order releasing information needed to decide whether an adult is incapable.

Banks and the court

You can tell the adult's bank about your concern, but how a bank responds varies by institution, and it may be limited in what it can share with you. Federally regulated banks made a voluntary 2014 commitment to make information about powers of attorney available to clients.

If the matter is serious, the Public Guardian and Trustee, or a person who reported to it, may apply to the BC Supreme Court. The court may terminate all or part of the enduring power of attorney, and it must consider the adult's wishes, beliefs and values. Acts an attorney did improperly can still bind the adult toward people who did not know and had no reason to believe the act was improper, so acting early matters.

What to do next

• If the adult is in immediate danger, call emergency services.
• Write down your timeline while details are fresh.
• Make a report to the Public Guardian and Trustee, and to a designated agency where it fits.
• Speak with a lawyer about court options, including whether an application is realistic given the facts.

Frequently asked questions