What can I do in Ontario if someone is misusing a power of attorney or an estate trustee is not accounting?
An attorney for property is a fiduciary who must keep accounts, and both attorneys and estate trustees can be compelled to pass accounts before the court and ordered to repay improper transfers.
An attorney acting under a continuing power of attorney for property is a fiduciary. The Substitute Decisions Act, 1992 and its regulations require the attorney to keep detailed accounts of all transactions, to act diligently and in good faith, and to keep the incapable person's property separate from their own. Gifts and loans to the attorney are tightly constrained.
Where money has moved without explanation, an interested person can apply to compel a formal passing of accounts. The same remedy applies to an estate trustee who will not account. On a contested passing the court can disallow transactions, order repayment, reduce or deny compensation, and remove the fiduciary.
If assets are actively being dissipated, do not wait for the passing of accounts — interim relief preserving the property is available and is far more effective than trying to recover funds later.
Source: Substitute Decisions Act, 1992, S.O. 1992, c. 30
This work is handled by Leena Kumar (Wills & estates). Read more about wills & estates at VK Law Group, or send us the facts and we will tell you where you stand.
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