Ask A Lawyer – Protecting A Vulnerable Parent From Financial Abuse

By Joni Metherell

My elderly father seems to be losing his ability to manage his financial affairs. I’m also worried that my step-sister is “borrowing” money from him. Dad doesn’t seem to be keeping records, and he’s always been really careful about keeping things equal between the kids. What can I do to protect Dad, and make sure that he’s not taken advantage of?

If your Dad still has sufficient mental capacity, and if he’s willing, he might be able to grant you a Power of Attorney.  A Power of Attorney will allow you to do on your Dad’s behalf anything in respect of his financial affairs that your Dad could do on his own. The Power of Attorney should be an Enduring Power of Attorney (EPOA) so that it will continue in effect if at some point your father is no longer capable of managing his financial affairs at all. The EPOA could be very broad without any restrictions, or it could be limited to handling your Dad’s banking or investment matters for instance.  Having the EPOA would allow you to potentially monitor your father’s bank accounts, change the bank account to a dual signature account for amounts over a set limit, or move the account to another institution.

If your Dad does not have the capacity to grant a Power of Attorney, you may have to consider making an application to Court to have yourself appointed “committee” (pronounced comm-i-TEE) of his affairs under the Patients Property Act. An application to be appointed committee requires two physicians to sign sworn statements that your Dad is no longer capable of managing his affairs, along with other medical information that forms the basis for the physicians’ opinion. Additional information is provided to the Court hearing the application regarding your father’s assets and liabilities, income and expenses, and who other close family members are. Unless it would be injurious to your father’s health, he would be entitled to know that the application to be appointed committee was being made. It usually takes a couple of months to get a committee appointed.

In very extreme circumstances of financial abuse, or if your Dad became vulnerable to scam artists and his home was at risk, you might consider making an emergency referral to the B.C. Public Guardian and Trustee. The Public Guardian and Trustee has the ability to declare a person to be incapable (on appropriate medical advice) fairly quickly. In that circumstance, the Public Guardian and Trustee would act as your father’s committee until such time as you had the opportunity to make your own application to Court.  In appropriate circumstances, the Registrar of Land Titles (who is in charge of land registration in the province) also has the ability to file a “Registrar’s Caveat” against your Dad’s property. This would prevent him from selling or mortgaging his property.

For more information on this topic, contact Pushor Mitchell Partner, Joni Metherell at: metherell@pushormitchell.com or (250) 869-1200.