What Should I Do if My Mandatary Abuses His Power of Attorney?
Granting someone a power of attorney is an important act of trust. In Quebec, a power of attorney allows a person, called the mandatary, to act on behalf of another person, known as the mandator, for specific legal or financial matters. While most mandataries act honestly and responsibly, situations unfortunately arise where a mandatary abuses the powers granted to him or her.
If you believe that a mandatary is misusing a power of attorney, withdrawing money for personal benefit, selling property without authorization, or acting against the interests of the mandator, Quebec law offers several legal remedies to protect the victim and recover losses.
What Is an Abuse of a Power of Attorney?
A mandatary must always act in the best interests of the person who granted the power of attorney. The mandatary has a legal obligation to act honestly, prudently, diligently, and within the limits of the authority granted by the mandate.
Examples of abuse include:
- Using the mandator’s bank account for personal expenses.
- Transferring the mandator’s money or investments without authorization.
- Selling the mandator’s property below market value for personal gain.
- Making gifts to oneself using the mandator’s assets.
- Refusing to provide financial information or account for transactions.
- Exceeding the powers specifically granted in the power of attorney.
- Pressuring the mandator into signing additional legal documents.
These actions may constitute civil wrongdoing and, in some situations, criminal offences such as fraud, theft, breach of trust, or forgery.
What Are the Duties of a Mandatary in Quebec?
Under the Civil Code of Québec, every mandatary must:
- Respect the instructions contained in the mandate.
- Act exclusively in the interests of the mandator.
- Avoid conflicts of interest.
- Preserve the mandator’s property.
- Keep accurate records of financial transactions.
- Provide an accounting when requested.
- Return all property and documents when the mandate ends.
A mandatary cannot simply treat another person’s money as his or her own.
How Can You Recognize Financial Abuse?
Many families only discover an abusive mandatary after significant financial losses have occurred.
Warning signs include:
- Unexplained withdrawals from bank accounts.
- Missing investments or savings.
- Sudden changes in ownership of property.
- Large gifts made shortly before incapacity.
- Missing financial records.
- Isolation of the vulnerable person from family members.
- Refusal by the mandatary to answer reasonable questions.
These situations deserve immediate legal attention.
Can a Power of Attorney Be Revoked?
Yes.
As long as the person who granted the power of attorney remains mentally capable, he or she may generally revoke the mandate at any time.
Once revoked, the mandatary immediately loses the authority to act.
If the mandator has become incapable, additional legal measures may be required, including the opening of a protective supervision regime or the homologation of a protection mandate, depending on the circumstances.
What Can Family Members Do?
Family members who suspect abuse should act quickly.
Possible steps include:
- Gathering bank statements and financial records.
- Requesting explanations from the mandatary.
- Preserving evidence before documents disappear.
- Consulting an experienced Quebec lawyer.
- Asking the court to intervene where appropriate.
- Requesting the appointment of a tutor if the person has become incapable.
- Instituting civil proceedings to recover misappropriated assets.
Early intervention often prevents further financial losses.
Can the Mandatary Be Ordered to Repay the Money?
Yes.
If a court concludes that the mandatary abused the power of attorney, it may order repayment of improperly used funds, compensation for damages, cancellation of unauthorized transactions, and other remedies depending on the circumstances.
The mandatary may also be required to provide a complete accounting of all financial transactions conducted on behalf of the mandator.
Does Abuse of a Power of Attorney Constitute a Crime?
Sometimes.
Although many disputes are civil matters, certain conduct may amount to criminal offences under Canadian law, including:
- Fraud
- Theft
- Breach of trust
- Forgery
- Identity-related offences
Where criminal conduct is suspected, a report may also be made to the appropriate law enforcement authorities.
Why Acting Quickly Matters
Financial abuse frequently becomes more serious over time. Delays may result in additional losses, missing evidence, or property being transferred to third parties.
Obtaining legal advice as soon as concerns arise greatly improves the chances of protecting the vulnerable person and recovering assets.
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].
