How Can You Hold Someone Accountable for Using a Power of Attorney?
A power of attorney gives one person, known as the mandatary or attorney, the legal authority to act on behalf of another person, called the mandator. While this document can be an effective tool for managing financial affairs, banking, real estate transactions, and other legal matters, it also creates opportunities for abuse if the mandatary exceeds their powers or fails to act honestly.
Under Quebec law, a person acting under a power of attorney has important legal duties. If the mandatary misuses the authority granted to them, they may be required to account for their actions, reimburse losses, return property, and, in some situations, face civil or even criminal consequences.
If you suspect that someone is abusing a power of attorney, it is important to understand your legal rights and the remedies available.
Does a Mandatary Have a Duty to Account?
Yes. Under the Civil Code of Québec, every mandatary has a legal obligation to administer the mandate prudently, diligently, honestly, and in the best interests of the person who granted the power of attorney.
One of the mandatary’s fundamental obligations is to render an account of how they have exercised their powers.
This generally includes:
- keeping accurate financial records;
- preserving invoices, receipts, and bank statements;
- explaining significant financial decisions;
- identifying transactions made on behalf of the mandator;
- returning all property and documents once the mandate ends.
The mandatary cannot simply refuse to explain how money was spent or transferred. If questions arise, they may be required by a court to provide a complete accounting.
When Can Someone Be Held Accountable?
A mandatary may be held accountable whenever there is evidence that they have failed to respect their legal obligations.
Examples include:
- withdrawing money for personal use;
- transferring assets to themselves or relatives without authorization;
- making gifts using the mandator’s money without authority;
- selling property below market value for personal benefit;
- refusing to provide financial records;
- failing to keep proper accounts;
- acting outside the powers granted by the power of attorney;
- creating conflicts of interest.
Even if the mandatary claims they acted with good intentions, they may still be liable if they failed to respect the obligations imposed by law.
Who Can Request an Accounting?
Several people may have an interest in ensuring that the mandatary has properly managed the mandate.
Depending on the circumstances, an accounting may be requested by:
- the person who granted the power of attorney;
- a tutor or representative appointed after the person becomes incapable;
- the liquidator of the estate after the mandator’s death;
- heirs whose rights may have been affected;
- other persons authorized by the court.
Each situation depends on its own facts, and the court determines who has sufficient legal interest to seek relief.
What Happens if the Mandator Has Become Incapable?
Many disputes arise after the person who signed the power of attorney loses the capacity to supervise the mandatary.
In these situations, family members often discover unexplained withdrawals, missing assets, unusual transfers, or significant changes in financial management.
A court may require the mandatary to explain every transaction made under the power of attorney and produce supporting documentation. If the explanation is incomplete or inconsistent, additional remedies may be available.
If the person’s incapacity requires long-term protection, it may also become appropriate to seek the homologation of a protection mandate or the establishment of a protective supervision regime under Quebec law.
What Can a Court Order?
When abuse or mismanagement is proven, Quebec courts have broad powers to protect the interests of the mandator.
Depending on the circumstances, the court may order:
- a complete accounting;
- reimbursement of missing funds;
- repayment of unauthorized withdrawals;
- cancellation of improper transactions;
- return of property;
- payment of damages;
- interest and legal costs;
- any other remedy necessary to protect the mandator.
If fraud, theft, forgery, or breach of trust is involved, criminal proceedings may also be possible in addition to civil remedies.
What Evidence Is Important?
Anyone seeking to hold a mandatary accountable should gather as much evidence as possible.
Useful documents often include:
- bank statements;
- cancelled cheques;
- invoices and receipts;
- property transfer documents;
- investment records;
- correspondence;
- emails and text messages;
- medical records concerning the mandator’s capacity;
- copies of the power of attorney.
A lawyer can also obtain additional evidence through court procedures when appropriate.
Can a Power of Attorney Be Revoked?
Yes.
If the mandator still has legal capacity, they may revoke the power of attorney at any time.
If abuse has already occurred, revoking the power of attorney does not prevent legal proceedings. The former mandatary may still be required to account for past actions and compensate the mandator for any losses.
Why Acting Quickly Matters
Financial abuse often continues until someone intervenes.
The longer questionable transactions remain unchallenged, the more difficult it may become to recover funds or reconstruct missing financial records.
Early legal advice can help preserve evidence, protect assets, and determine the most effective legal strategy.
This text is provided for legal information purposes only. If you have a specific question regarding your personal situation, please contact a lawyer.
Allen Madelin Avocats offer consultations both in person and via videoconference. The first consultation is offered for $125.For more information, please contact us by telephone: 1 514 904 4017 or by e-mail: [email protected].
