What the Law Says About ... Financial/Material Abuse

What the Law says about Financial/Material Abuse

Some forms of financial abuse are criminal offences as described in the Criminal Code of Canada (which applies in all provinces and territories). In addition, some forms of financial abuse are offences described under some provincial statutes.

The offences listed below cover some of the financially abusive actions that can be inflicted on older adults. These are general descriptions of legal concepts. There are many individual and separate offences, some of which are very similar to one another. Sometimes one action can fit the definitions of more than one offence and may lead to multiple charges against the alleged abuser.

Examples of offences that may apply to different forms of financial abuse include the following.

Theft
Theft by a person holding a power of attorney
Theft of money held under direction
Fraud
Using mail to defraud
Stealing credit cards
Forgery
Uttering a forged document
Robbery
Extortion
Identity theft and identity fraud
Offences under the Personal Directives Act (Alberta)

Theft

Theft is when a person knowingly takes or uses another person’s property, without that person's consent, with the intent of permanently or temporarily depriving that person of the property.

Theft also occurs when a person has the intent to steal an item and moves it (or has someone else move it). Theft of a bank credit is included within the definition of theft.

However, property does not need to be physically removed in order for there to be theft. For example: if the property has been given to another person as security for a debt without the owner’s consent, it is theft. Also, returning the item does not necessarily undo the theft, especially if the item is no longer in the same condition as when it was taken.

Such actions do not have to occur in secrecy: even if the owner of the property knew that the property was taken without his or consent, it can still be theft.

Theft by a person holding a Power of Attorney

A Power of Attorney is a written, signed, dated and witnessed document that gives someone else the right, while you are still alive, to act on your behalf with respect to your financial affairs, including debts. This can include paying bills, depositing and investing money on your behalf, and even selling your house. The person who signs the document is called the “Donor”, and the person who is appointed is called the “Attorney”.

A person who was appointed under a Power of Attorney commits theft when s/he carries out his/her duties in a “fraudulent” manner. This occurs when there is both an intent to deceive and actual (or possible) financial loss. This kind of theft can occur when the Attorney uses the Donor’s property for any purpose other than those granted to the Power of Attorney.

Theft of money held under direction

In situations where a person receives money (or other valuable security) from the sale of property and is given instructions (known as a “direction”) that the money be used in a specific way, s/he must follow those directions. “Theft of money held under direction” occurs if the money is used in any other way that is contrary to the direction.

To prove that this happened, there must be evidence of a direction being given. The evidence must be more than a mere expectation – it must have been expressly communicated to the person receiving the money.

Fraud

Fraud occurs when a person knowingly misrepresents the truth or conceals information through statement or conduct in order to make another person rely on that information and act in a particular way.

To “defraud” someone is to cause that person loss or injury as the result of such dishonesty or deceit.

Using mail to defraud

This occurs when a person send letters or other materials with the intent of deceiving the recipient. This includes attempts to obtain money by “false pretences”. A false pretence is a fact that has been purposefully misrepresented so that the person receiving the fact acts on that information. An exaggeration is not necessarily a false pretence unless the exaggeration is carried to such an extreme that it is a misstatement of the facts with the intent of having the recipient act in a detrimental way.

Stealing credit cards

This occurs when a person:

falsely signs a receipt as if s/he was the credit card holder (example: someone uses your card and signs your name for you);
using a card that is known to have been obtained by an offence having been committed (for example: using a credit card that you know was stolen from somebody else); and
using a card that is known to be revoked or cancelled.

Forgery

Forgery is where a person knowingly creates a false document (or alters a document) with the intent that that document be treated (and acted upon) as genuine and this leads to a loss for someone else. “Altering” includes: adding to, erasing, or removing anything material in a document.

Forgery can also occur when that false document is meant to persuade someone to do (or not do) something. However, offence is complete as soon as the document is made and the maker intends to use it, whether or not the maker intends a specific person to act on the document. The offence is also complete even if the document is incomplete or has no legal effect, as long as it can be shown that the false document was intended to be treated as genuine.

A false document includes:

a document which wholly or partly claims to be made by a person who did not authorize the document (a person who does not exist).
a document made the person who claims to have made it, but which is false in a material way.
a document made by a person (or under that person’s authority) with a fraudulent intention that it should appear to be made by another person, either real or fictitious.

Example

It would be forgery if a cheque is made out to Bob, and Joe endorses the cheque by signing Bob’s name on it. Even if Bob gave permission for Joe to sign his name, forgery has still occurred.

Using a forged document

Not only is it a crime to create a forged document, it is also a crime for a person to knowingly use, deal with, or act on a forged document as if it were genuine. It is also a crime for a person to knowingly force someone else to use, deal with, or act on a forged document. Similarly, it is illegal for a person to demand, receive, or obtain anything (or cause anything to be delivered or paid) by knowingly using a forged document.

Robbery

Robbery is where a theft is accompanied by violence (including an assault or the use of a weapon) or threats of violence.

Extortion

Extortion is when a person uses threats, accusations, or violence to get something or force someone else to do something. In other words, the extorting person uses verbal or physical intimidation to force the other person to do or give something that they would not otherwise do or give.

Identity theft and identity fraud

In early 2010, the federal government added several new Criminal Code offences targeting identity theft and related conduct.

In general, identity theft refers to the collection and possession of another person's identity information.
In general, identity fraud refers to the deceptive use of another person's identity information in connection with other crimes such as fraud or abuse of credit card data.

Offences under the Alberta Personal Directives Act - Alberta

The Alberta Personal Directives Act permits individuals over 18 to create a Personal Directive. This document allows an individual to appoint an “Agent” to make decisions for the individual after he or she loses capacity. Once the Personal Directive comes into effect the Agent’s decisions are considered to be equivalent to those of the individual. Thus, the individual who created the Personal Directive (known as the Maker) is vulnerable to and dependent upon the Agent. To help protect the Maker, The Alberta Personal Directives Actcreates various offences.

For example:

it is an offence to intentionally destroy, steal, hide, or alter a Personal Directive (or a document that revokes a Personal Directive) without the consent of the Maker. The offence carries a fine.

it is an offence to require a person to make a Personal Directive as a condition for obtaining residential accommodation or for continuing to live in residential accommodation. The offence carries a fine.

Other provinces and territories have similar laws. For information on laws in other provinces, please see our page of Additional Resources.