A recent Ontario case, R. v. Ehrhardt, 2025 ONSC 6850, highlights the serious consequences of misusing a power of attorney. A power of attorney comes with fiduciary duties, and those acting in this capacity are required to act in the best interests of the grantor. However, as this case shows, if that responsibility is abused, the consequences can go beyond civil liability. Where the evidence supports such a finding, the conduct may be treated as a criminal offence and can result in jail time.
Here, the defendant was in a long-term relationship with the victim (the “deceased”). The deceased appointed the defendant as her attorney for property at a time when she was already showing signs of cognitive decline. As her condition progressed and she was later diagnosed with dementia, she entered long-term care and became unable to manage her own financial affairs. During this period, the accused assumed full control over her assets.
The evidence showed that the defendant used the grantor’s funds for a range of personal expenses, including travel, dental work, vehicle repairs, and everyday costs, and incurred additional debt through a credit card opened in her name.
The court found that the defendant’s conduct amounted to a serious breach of trust, particularly given the vulnerability of the deceased and her inability to protect her own financial interests.
The defendant was convicted of theft by a person holding power of attorney under s. 331 of the Criminal Code and of theft over $5,000 under s. 334(a) of the Criminal Code.
At sentencing, the court imposed a one-year term of imprisonment, concurrent for both counts, and ordered restitution in the amount of $82,489.22 to the grantor’s estate.
Circumstances of the Offender
At the time of trial, the defendant was 82 years old. He resided with a new partner, in the home that he previously shared with the deceased. The defendant had a prior criminal record, having declared bankruptcy in 2015, he was later convicted of offences under the Bankruptcy and Insolvency Act for providing false information and failing to comply with court-ordered obligations. In carrying out the 6-month conditional sentence under this conviction, it was noted that the defendant had difficulty with boundaries, following due process, and following certain conditions.
In this proceeding, the court noted that the defendant failed to appear numerous times, did not comply with instructions, caused uncertainty and difficulty for counsel, and provided limited and outdated medical documentation to support his absences.
Factors Considered by the Court
In imposing the sentence, the court found several aggravating factors, including:
- the defendant’s abuse of a position of trust, carried out against a vulnerable individual, with fraudulent intent
- the defendant’s coercive and controlling conduct within an intimate partner relationship, and efforts to limit family involvement and oversight
- the defendant’s prior criminal record and a pattern of conduct described as “brazen concealment of the truth, and feigned surprise at every suggestion of wrongdoing”. [1]
- the defendant’s continued refusal to accept responsibility, including blaming others for his circumstances, and absence of any remorse
The defendant asserted age and mental health conditions as mitigating factors. The court did not find this compelling, given that there was no evidence of a casual connection between those conditions and the commission of the offences. [2]
The defence argued against restitution on two main grounds:
- that an estate is not a legal “person” under the Criminal Code and therefore cannot receive restitution
- that the accused was a potential beneficiary under the will, meaning he could effectively be repaying himself
The court rejected both arguments and held that restitution was appropriate. In addressing the parallel civil proceedings, which concerned the deceased’s capacity and the validity of the will, the court held that it did not preclude a restitution order. Although those issues remained unresolved, the losses were clearly tied to the breach of fiduciary duty and could be readily quantified, making restitution appropriate in the criminal proceeding.
As for the jail sentence, the court found that the seriousness of the offences, including the need for denunciation and deterrence, strongly supported such a ruling. The court ultimately concluded that a term of imprisonment was appropriate, and that no additional probation was necessary, given the circumstances and the accused’s history of non-compliance.
