Applying to Become Committee of an Incapable Adult in New Brunswick

If your parent can no longer manage their affairs and never signed a power of attorney, you may have heard that you need to become their committee. That term comes from older law. Families still use it, but the legal process has changed.

This article explains how to ask the Court of King's Bench of New Brunswick to appoint a representative, what the court wants to see, and what your responsibilities are afterwards. It is general information only.

This article covers the law of New Brunswick.

Committee is now a representation order

The Infirm Persons Act, which provided for a committee of the person or estate, was repealed in January 2024; the repeal is recorded as January 1 in some places and as 26 January in others, so confirm the exact date with a lawyer if it matters to you. Applications are now for a representation order in the Court of King's Bench, which can appoint a representative for financial matters, personal care matters, or both.

Committees appointed under the former Act are deemed representatives for financial or personal care matters, subject to the conditions of the original order.

Capacity is central to every step. A person has capacity if they are able to understand information relevant to a decision and appreciate its reasonably foreseeable consequences. A person is presumed to have capacity unless the contrary is demonstrated. This is why the application must include a capacity assessment report, which must be dated no earlier than six months before filing unless the court orders otherwise.

Who can apply and where

An application may be made by an interested person aged 19 or older, the Public Trustee, a trust company, or a prescribed class. Whether you count as an interested person depends on your family's circumstances, so a lawyer can confirm how that applies to you. The application is made to the Court of King's Bench of New Brunswick.

What the application must include

• The applicant's affidavit.
• The proposed representative's affidavit.
• A capacity assessment report.
• A financial summary, if financial powers are being sought.

The assessment report must be dated no earlier than six months before the application is filed, unless the court orders otherwise. Assessors include medical practitioners, nurse practitioners and psychologists. If the person refuses to undergo or continue an assessment, the report need not accompany the application.

The detailed regulations on the application process are not summarized here, so ask a lawyer or the court registry about current forms and steps.

What the court must be satisfied about

The court will not appoint a representative simply because family members agree it is sensible. It must be satisfied of each of the following:

• The person lacks capacity to make all the decisions likely to arise.
• Each proposed representative consents, is eligible and is suitable.
• A less intrusive measure is unavailable or would not meet the person's needs.

If an enduring power of attorney exists and conflicts with a representation order, the order prevails. A signed power of attorney is therefore worth finding before you apply, since it may mean an application is unnecessary.

An enduring power of attorney is a document in which a person appoints an attorney for property and financial affairs, personal care, or both, and it continues despite the grantor's later incapacity. A property attorney may act right after signing unless the document says otherwise, or only once incapacity is established. A personal care attorney acts only when the grantor lacks capacity for the matter. An attorney, the Public Trustee or an interested person may also apply to court to give directions, terminate authority or replace the attorney.

Duties once you are appointed

A representative must act honestly, in good faith and with reasonable care. A representative must not act for their own benefit. Financial representatives must keep the records needed to give a complete account of their financial actions.

The court may require security. It must also review the order where circumstances significantly change. A representation order ends on the death of the represented person. After that, the estate is dealt with by an executor or administrator appointed through the Probate Court, not by the representative.

What to do next

Every family's situation is different, so how these rules apply to your parent depends on the facts and is worth confirming with a lawyer. Keep copies of everything you gather and notes of any conversations about your parent's care.

• Search your parent's papers and ask their bank, lawyer and family whether a power of attorney exists.
• Talk with relatives about who should act, and whether they will consent and are suitable.
• Ask your parent's doctor, nurse practitioner or psychologist about an assessment and its date.
• Gather a clear list of income, accounts, debts and property for the financial summary.
• Speak with a lawyer about the application and whether a less intrusive option might work.

Frequently asked questions