A woman with power of attorney who took tens of thousands of dollars from a 97-year-old woman with dementia had criminal charges against her withdrawn, in a case critics say exposes gaps in the justice and banking systems that leave the elderly and infirm vulnerable to financial abuse.

"There's a reason it's called power of attorney," said Kavina Nagrani, chair of the Canadian Bar Association's Elder Law section. "It's a very powerful document."

A power of attorney gives someone the right to make decisions for you if you are no longer able to take care of matters yourself. In many cases, they have near unfettered access to your finances.

Yet, there is no regulatory body to monitor or sanction someone with power of attorney. And when it comes to fraud or theft, criminal proceedings can often fall apart because the victim is either medically unable to testify or unwilling to bring charges, either because the accused is often a family member or close friend or because they fear they will no longer have someone to act on their behalf.

"The crux of the issue is who's watching? Who's monitoring that person? There is no big brother authority here," said Nagrani. "And when no one is watching and you're not accountable to report to anyone, the risk of mismanagement and abuse is there."

Nancy Lewis, a university professor who lives in Prescott, Ont., said there was no one watching over her long time friend Christine Fisher.

Nancy Lewis is Fisher's new power of attorney (POA). She says her lifelong friend has been let down by a system that doesn't protect the elderly and vulnerable when it comes to financial disputes involving POAs. (John LeSavage/CBC)

In 2016, Fisher was 94 and still living in her own apartment in Toronto. A widow and a veteran of the Second World War, she was in the early stages of dementia when a woman named Theresa Gardiner offered to help her out.

"[Gardiner] would pick her up, and they would go for groceries and go for dinner one night a week or go see a movie or something," said Lewis.

Fisher had known Gardiner decades earlier when they both worked at the Bank of Montreal, but Lewis said they weren't close. Yet Fisher gave Gardiner power of attorney (POA).

Gardiner moved Fisher out of her apartment and into a seniors' residence in Ontario.

Lewis was uncomfortable with the decision and said she eventually suggested to Gardiner that a second person be added to the POA to monitor the accounts.

"[Gardiner] said 'absolutely not, that is not going to happen,'" said Lewis.

So Lewis and another family member asked Fisher if she wanted them to check her accounts. Fisher agreed but said she didn't have her bank card.

"She opens her wallet, [instead of a bank card] there's a note in blue ink. 'Theresa Gardiner has my bank cards and won't give them back,'" said Lewis.

Theresa Gardiner took $78,000 from Fisher's accounts. She says the 97-year-old woman in the early stages of dementia wanted her to take the money. (@corncounty/Twitter)

Lewis began looking for statements in Fisher's room at the seniors' home but instead said she found more notes, dozens of them "about Theresa Gardiner taking her money, moving her investments from one bank to the other," Lewis said.

Lewis showed the notes to CBC News.

"Theresa Gardiner has to be stopped from getting control of all my banking accounts," read one note in spidery handwriting. "Theresa Gardiner has my Mastercard" and "Theresa Gardiner has my bank card and refuses to return it, have the bank card cancelled," read another.

Lewis said Fisher, worried about losing her memory, had written reminders to herself or testaments for others.

"She had left breadcrumbs for me to find," she said.

Lewis says she found dozens of notes like this in Fisher's room. (CBC)

Tens of thousands taken

Lewis eventually gained access to Fisher's finances and discovered that on April 20, 2018, Gardiner had written a cheque to herself from Fisher's Bank of Montreal account for $20,000. Sixteen days later, on May 6, Gardiner wrote a cheque to cash from Fisher's RBC account for another $20,000. Seven weeks after that, Gardiner wrote another cheque to cash, also from Fisher's RBC account, this time for $38,000.

Theresa Gardiner told CBC News Fisher wanted her to have that money.

"She wanted to do that for me," said Gardiner. "She wanted to change her will and leave me everything. And I wouldn't let her because I said, 'Chris, you're at a point in your life where you don't know what you're doing.'"

A $20,000 cheque Gardiner wrote to herself, one of three totaling $78,000 that she withdrew from Fisher's accounts. (CBC)

However, Gardiner said Fisher did want her to have her tax-free savings account (TFSA), which she accepted.

When asked why she wrote three separate cheques rather than removing those funds in one large amount, Gardiner said she needed the money for her husband who was terminally ill at the time.

"It was through my husband's health situation, and Chris knew that, too," said Gardiner.

CBC News asked Gardiner why Fisher would have written all those notes.

"Because she was in a demented state," said Gardiner.

Charges laid and then withdrawn

In July 2019, police charged Gardiner with three counts of theft under $5,000 and three counts of theft over $5,000. But in November, the Crown withdrew the latter three charges when Gardiner agreed to pay $20,000 in restitution. There was no admission of liability.

"The Crown has an ongoing obligation to assess the strength of the case throughout a prosecution and is duty-bound to withdraw the charges if there is no reasonable prospect of conviction, or if it is not in the public interest to proceed," a spokesperson for Ontario's Ministry of the Attorney General told CBC News in a email.

Marissa Lennox, chief policy officer for the Canadian Association for Retired Persons, says withdrawing the charges against Gardiner sends the wrong message. (Laura MacNaughton/CBC)

"What message does that send to people? That older adults, particularly older adults with dementia, are open for business for criminal activity," said Marissa Lennox, chief policy officer for the Canadian Association of Retired Persons, an advocacy group based in Toronto.

"You know that there aren't consequences for someone who perpetrates elder abuse against an older person. That to me is the real devastation about this," she said.

With the criminal case not going forward and the Crown accepting restitution of just one quarter of the amount of money taken, Fisher's only recourse now may be a civil suit. In civil court the burden of proof is different than in a criminal proceeding and the accuser may not need to testify. But civil proceedings also have limitations.

"A lot of times by the time you start a lawsuit, the money you're going after is long gone," said Nagrani from the Canadian Bar Association. As the population ages, banks are becoming more aware of these issues, she said.

Kavina Nagrani is chair of the Canadian Bar Association's Elder Law section. She said the aging population has led to a growing number of financial disputes involving powers of attorney and the elderly. (Joe Fiorino/CBC)

"I think that the banks have a very difficult situation on their hands, because even when there are red flags, there's a lack of protocol as to what to do. There's also a lot of inconsistency amongst the different banks as to how to deal with these problems," Nagrani said.

CBC News asked both the Bank of Montreal and RBC how someone — even a power of attorney — would be allowed to withdraw such large sums of money in such a short period time from an elderly person's account.

"Financial abuse of the elderly is something RBC takes very seriously, and we understand it can be devastating to those impacted. When assigning a power of attorney (POA), clients and their families must ensure that that person is trustworthy," RBC said in a statement.

The bank refused to comment on Fisher's particular case, citing client confidentiality.

BMO, also citing privacy reasons, declined to comment but said, "We have reached out to the customer's current power of attorney to work on a resolution."

As Fisher's new power of attorney, Lewis has asked both banks to compensate Fisher for the money Gardiner took from Fisher's accounts. Both banks have refused.

Meanwhile, Lewis said Christine Fisher has yet to receive the $20,000 restitution Gardiner agreed to pay last November.

"I don't know what's happening with that, and I'm not even sure who to ask," Lewis said.