Unfortunately, some people may misuse legal documents for their own benefit. Even though a person must meet the traditional definition of capacity to create an Enduring Power of Attorney and understand its “nature and effect” when they sign it, the document can still be abused. Both civil and criminal law exist to deal with this problem.
In Canada, it is a crime to use a Power of Attorney to take or misuse someone else’s money. A person found guilty can go to prison for up to 10 years. In all likelihood, a section 7 representation agreement (an RA7) that includes authorities for legal affairs and/or routine financial management is also covered by these sections of the Criminal Code. The Ontario case R v Ehrhardt, 2025 ONSC 6850, is about a man who was found guilty of stealing almost $83,000 while acting under a Power of Attorney.
In this case, Mr. Ehrhardt met his partner, Ms. Driscoll, in 2007. She made a Power of Attorney appointing him in 2014. She was also diagnosed with Alzheimer’s disease that year and later moved into long-term care in 2015. The Power of Attorney was cancelled by a court in 2017, and Ms. Driscoll passed away later that year. The crimes happened during the last two years of her life.
The judge strongly criticized Mr. Ehrhardt. The court said he broke Ms. Driscoll’s trust and his legal duties as her attorney, and used her money as if it were his own. The judge also said he took advantage of her while she was vulnerable due to her declining health.
Evidence showed that after declaring his own personal bankruptcy in 2015, Mr. Ehrhardt moved at least $75,000 from Ms. Driscoll’s accounts into his own, while only about $4,000 went the other way. He also opened a credit card in her name and spent money without clear benefit to her.
The Crown prosecutor asked for a prison sentence of 12 to 18 months, along with repayment of $148,000. The defence argued for a sentence to be served in the community and no repayment.
When deciding the sentence, the court looked at the Criminal Code’s purposes and principles of sentencing including reprimanding the actions of and harm done by the offender, preventing future crimes, protecting the public, rehabilitating the offender, repairing the harm done, and developing responsibility/accountability in the offender. The sentence must also match the seriousness of the crime and the offender’s level of involvement, and it must be like other sentences in similar cases.
The court noted several factors that made Mr. Ehrhardt’s actions particularly bad. He had problems following court orders and rules regarding his past bankruptcy and during this case. He missed court dates, caused delays, and tried to avoid responsibility. When he spoke in court, he did not accept blame for his actions. The judge believed he was unlikely to change. The court confirmed several other serious “aggravating” factors in his actions:
- he had abused a position of trust;
- the victim (Ms. Driscoll) was vulnerable;
- his actions towards her were controlling and harmful and amounted to “intimate partner violence” at law;
- he knew what he was doing was wrong and did it anyway (he had “fraudulent intent”); and
- he tried to hide what he had done.
The defence argued that his age and health should reduce his sentence, but the court did not find these reasons convincing.
The court decided that Mr. Ehrhardt must repay approx. $82,500, which had clearly been used only for his own benefit. This was ordered even though there were also civil claims against him that were ongoing. He was also sentenced to one year in prison and ordered to repay the money within two years.
It is wrong and disheartening that personal planning documents can be misused by the person(s) appointed. Unfortunately, this can happen even if the document requires the traditional definition of capacity to be made.
The good news is that the great majority of personal planning documents are used responsibly, for the purposes they are intended and within the duties at law. In addition, with RA7s, there are extra safeguards built into the law to try and avoid this occurring from the start. Nevertheless, R v Ehrhardt is a reminder that there are civil legal rules (discussed in our previous article) and criminal legal rules (discussed above) to deal with bad actors.