Getting a Capacity Assessment for an Aging Parent in New Brunswick

When a parent is forgetting bills, falling for scams or turning down help, it is hard to know where respect for their independence ends and the need to step in begins. A capacity assessment is often the first formal step.

This article explains how capacity is understood in New Brunswick, who can assess it, and what the options are if your parent will not cooperate. It is general information, and every family's situation is different.

This article covers the law of New Brunswick.

What capacity means and why the starting point matters

Under the Supported Decision-Making and Representation Act, a person has capacity if able to understand information relevant to the decision and appreciate its reasonably foreseeable consequences. A person is presumed to have capacity unless the contrary is demonstrated.

This means that a parent making choices you disagree with is not necessarily lacking capacity. Capacity is about the ability to understand and appreciate, not whether the decision seems wise. The Act came into force on January 1, 2024.

Who can assess capacity

Under the Act, assessors include medical practitioners, nurse practitioners and psychologists. Where an enduring power of attorney is involved, incapacity is determined by a person named in the document or, failing that, an assessor, being a licensed medical or nurse practitioner or a prescribed class.

A practical first step is usually to speak with your parent's family doctor or nurse practitioner, who may know their history. Whether and how an assessment can be arranged in your area can vary, so ask the provider directly.

When an assessment leads to a court application

The Infirm Persons Act, under which a person became a committee of the person or estate, was repealed on January 1, 2024. Applications are now for a representation order in the Court of King's Bench, which can appoint a representative for financial and personal care matters.

An interested person aged 19 or older, the Public Trustee, a trust company or a prescribed class may apply. The application must include the applicant's affidavit, the proposed representative's affidavit, a capacity assessment report, and a financial summary if financial powers are sought. The report must be dated no earlier than six months before filing unless the court orders otherwise.

The court must be satisfied that the person lacks capacity to make all the decisions likely to arise, that each proposed representative consents and is eligible and suitable, and that a less intrusive measure is unavailable or would not meet the person's needs.

If your parent refuses an assessment

• The assessment report need not accompany the application if the person refuses to undergo or continue an assessment.
• A refusal does not change the legal test, so the court must still be satisfied that your parent lacks capacity and that less intrusive measures will not work.
• Committees appointed under the former Act are deemed representatives for financial or personal care matters, subject to the original order's conditions.
• If a provision of an enduring power of attorney conflicts with a representation order, the order prevails.

If your parent already has an enduring power of attorney, the attorney may be able to act without a court order. A property attorney may act right after signing unless the document says otherwise, or only once incapacity is established, while a personal care attorney acts only when the grantor lacks capacity for the matter.

An attorney, the Public Trustee or an interested person may apply to court to give directions, terminate authority or replace the attorney.

What to do next

• Write down specific examples of concern, with dates, rather than general impressions.
• Check whether your parent already signed an enduring power of attorney and who is named in it.
• Raise your concerns with your parent's doctor or nurse practitioner.
• Try gentler options first, such as offering support with decisions, where that is still workable.
• Speak with a lawyer before filing anything, because a representation order is a serious step. Remember that any such order ends on the represented person's death.

Frequently asked questions