An Ontario court sentenced a man to two one-year prison terms, to be served concurrently, after a jury convicted him on two charges: theft by a person holding a power of attorney and theft of property over $5,000.designer491/iStockPhoto / Getty Images
A court has sentenced a man who served as his common-law partner’s power of attorney to jail and ordered him to repay $82,500 to her estate for stealing from her and exploiting her vulnerability while she lived with dementia.
In R. v. Ehrhardt, an Ontario Superior Court of Justice decision currently under appeal, a judge found that 82-year-old John Ehrhardt had “committed crimes of dishonesty involving a breach of trust” and had effectively used his partner as his “personal automated teller machine.”
In December, the Ontario court sentenced Mr. Ehrhardt to two one-year prison terms, to be served concurrently, after a jury convicted him on two charges: theft by person holding a power of attorney and theft of property over $5,000.
He was also ordered to make restitution to Ms. Driscoll’s estate and to have no contact with her family.
While it’s “very rare” for a power of attorney dispute to result in a criminal conviction, the decision demonstrates “the high bar that fiduciaries and attorneys are held to and the great risk and liability that you face if you misappropriate funds,” says Emily Caza, a lawyer with estate litigation firm Whaley Estate Litigation Partners in Toronto, who was not involved in the case.
Dementia and continuing power of attorney
Mr. Ehrhardt met Barbara Driscoll in 2007 and they developed a romantic relationship. A few years later, Mr. Ehrhardt moved into Ms. Driscoll’s Kingston, Ont.-area home. In 2014, Ms. Driscoll granted Mr. Ehrhardt a continuing power of attorney after receiving an assessment of declining mental capacity and then, a month later, a diagnosis of dementia.
In 2015, Ms. Driscoll went into long-term care and she died in 2017. Throughout this time, she was incapable of managing her finances.
In court, a forensic accountant found that $75,000 had been transferred from bank accounts held solely or jointly by Ms. Driscoll to accounts held solely by Mr. Ehrhardt, while less than $4,000 had been transferred in the opposite direction.
Mr. Ehrhardt provided the court with no explanation for two large transfers – one for $35,000 and another for $30,000 – from Ms. Driscoll’s account, payable to him.
The court found Mr. Ehrhardt used Ms. Driscoll’s funds to pay for legal fees, travel, dental work, auto repairs, computer supplies and mobile phone bills for his own benefit.
After filing for bankruptcy in 2015, Mr. Ehrhardt obtained a credit card in Ms. Driscoll’s name. He applied to increase the credit limit to $15,000 from $2,000 and incurred debt charges with an interest rate of 19.99 per cent. Ms. Driscoll never used the card and many of the purchases made with it were not for her benefit.
The judge in the case agreed with a Crown submission that Mr. Ehrhardt’s conduct toward Ms. Driscoll was “coercive and controlling.”
Ms. Driscoll’s cognitive decline was advanced enough that she wouldn’t have known the extent to which she was being exploited and abused by Mr. Ehrhardt, he said.
The judge also noted that civil litigation in relation to Ms. Driscoll’s will was on hold pending the outcome of the criminal case. In the meantime, Mr. Ehrhardt continued to live in the home he had shared with Ms. Driscoll, but now with a new partner.
Dylan Gold, a lawyer with Bytensky Shikhman Barristers in Toronto, which is acting for Mr. Ehrhardt, said his client declined to comment because of the ongoing appeal.
Lynne Driscoll, the daughter of Barbara Driscoll, also declined to comment.
Criminal provisions ‘underutilized’
Family disputes involving a power of attorney are unfortunately common, Ms. Caza says.
“The population is aging, there’s a lot of money in the hands of that 65-year-plus generation, and not everybody acts in a person’s best interest when they have access to that money.”
Disputes over a power of attorney are often addressed through civil proceedings as opposed to criminal prosecutions, which is why the Ehrhardt case is notable, she says.
“While the Criminal Code does contain provisions that can apply to financial abuse, they are underutilized, and restitution for victims is relatively rare,” she says.
A criminal case is also subject to a higher standard of proof relative to a civil action, she says. Interested parties can ask for a passing of accounts in a civil proceeding themselves, rather than rely on prosecutorial discretion to initiate a criminal case.
“If the accounts reveal problems, the court may order remedies such as repayment of funds or removal of the attorney,” Ms. Caza says.