How to Challenge a Misused Power of Attorney in New Brunswick

You may have noticed missing money, unexplained transfers or a parent who is suddenly cut off from family. If an attorney holds a power of attorney for a senior, it is natural to worry that the role is being misused, and hard to know where to start.

This article explains what an attorney is supposed to do, the steps people commonly consider, and how things change if the senior has died or needs a court-appointed representative. It is general information, not advice on your situation.

This article covers the law of New Brunswick.

What an attorney must and must not do

An enduring power of attorney lets a person appoint an attorney for property and financial affairs, personal care, or both, and it continues even if the person later becomes incapable. A property attorney may act right after signing unless the document says otherwise, or only once incapacity is established.

The attorney must act honestly, in good faith, with reasonable care and within their authority. Where the grantor lacks capacity, the attorney decides by looking in order at prior instructions, current wishes, the likely decision and then best interests.

An attorney is not paid unless the document allows it, but may be reimbursed reasonable expenses. So a payment to the attorney that is not an expense or allowed by the document is worth questioning.

Signs worth taking seriously

• Withdrawals or transfers that do not match the senior's needs or wishes.
• The attorney paying themselves without any authority in the document.
• Refusal to explain what has been spent or to show records.
• Acting beyond the document, for example making decisions the document does not give them.
• Acting as if the power of attorney still applies after the senior's death, or after an event that ended it.

Authority ends on revocation, resignation, the attorney's incapacity, the grantor's death and other listed events. If the attorney is a spouse or common-law partner, separation also ends their authority unless the document provides otherwise.

Asking for answers and going to court

A calm written request for information is often the first step. Ask what has been spent, on what, and where the records are. Keep copies of everything you send and receive, and gather bank statements, the power of attorney itself and any notes of conversations.

If that does not resolve it, an attorney, the Public Trustee or an interested person may apply to court to give directions, terminate the attorney's authority or replace the attorney. The court process is technical, so a lawyer can help you decide whether you count as an interested person and what evidence to bring.

Capacity can matter too. A person is presumed to have capacity unless determined otherwise, and capacity means the ability to understand relevant information and appreciate reasonably foreseeable consequences. Incapacity is determined by a person named in the document or, failing that, an assessor such as a licensed medical or nurse practitioner.

When a representation order may be needed

If the senior lacks capacity and a power of attorney is not working, another route is a representation order from the Court of King's Bench, which can appoint a representative for financial or personal care matters. The old committee system under the Infirm Persons Act was repealed, and committees appointed under it are deemed representatives, subject to the original order's conditions.

An interested person aged 19 or older, the Public Trustee or a trust company may apply. The application must include the applicant's affidavit, the proposed representative's affidavit, a capacity assessment report and, if financial powers are sought, a financial summary. The court must be satisfied that the person lacks capacity for all decisions likely to arise and that a less intrusive measure is unavailable or would not meet their needs.

A representative must act honestly, in good faith and with reasonable care, must not act for their own benefit, and must keep records that give a complete account of financial actions. If an enduring power of attorney conflicts with a representation order, the order prevails.

After the senior dies and what to do next

The power of attorney ends at death, and the estate is dealt with by the executor or administrator appointed by the Probate Court. An interested person may apply for a citation ordering an executor to pass accounts. Time limits apply to claims. The basic limitation period is the earlier of two years from discovery and fifteen years from the act or omission. For a claim that survives against a deceased person, the period is two years from the later of death and discovery, with a five-year outer limit from death.

• Collect the power of attorney, statements and any records you can lawfully obtain.
• Write down dates, amounts and what you noticed, and when you first learned of it.
• If someone is in immediate danger or a crime appears to be happening, contact your local police.
• Speak with a lawyer early, because time limits can run from discovery.
• Do not confront or accuse in a way that puts the senior at risk of being isolated.

Frequently asked questions