Parent With Dementia and No Power of Attorney in New Brunswick

When a parent has dementia and never signed a power of attorney, ordinary things become hard. Bills pile up, the bank will not talk to you, and someone has to decide what happens with the house. Being a child of the person does not, by itself, give you legal authority to handle their money or property.

This article explains the options that remain in New Brunswick, starting with whether your parent can still sign a power of attorney and moving to the court route. It is general information, and the right path depends on your parent's actual abilities and situation.

This article covers the law of New Brunswick.

Start with the question of capacity

Capacity is about a specific decision, not a label. In New Brunswick, a person has capacity if they can understand the information relevant to a decision and appreciate its reasonably foreseeable consequences. A person is presumed to have capacity unless the contrary is demonstrated.

This matters because dementia is a progressive condition. Early on, a parent may still understand what a power of attorney is and who they are choosing. A power of attorney requires that the grantor have capacity when signing, and one for property must be signed in front of a lawyer who gives a written statement confirming review and capacity. If your parent can still do this, signing one is usually far simpler than going to court. Whether they can is a question for a lawyer and, often, a health professional.

If capacity is gone: the representation order

The old system of a court-appointed committee no longer exists. The Infirm Persons Act was repealed when the Supported Decision-Making and Representation Act came into force on January 1, 2024. Applications are now made to the Court of King's Bench for a representation order, which can appoint a representative for financial matters, personal care matters, or both.

The court must be satisfied of several things, including that your parent 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 your parent's needs.

Who can apply and what the application needs

• Who may apply: an interested person aged 19 or older, the Public Trustee, a trust company, or a prescribed class.
• The applicant's affidavit and the proposed representative's affidavit.
• A capacity assessment report, which must be dated no earlier than six months before filing unless the court orders otherwise.
• A financial summary, if financial powers are being sought.
• Assessors can include medical practitioners, nurse practitioners and psychologists.

There is an exception if your parent refuses to undergo or continue an assessment: the report need not accompany the application in that case. A lawyer can explain how that works in practice.

What a representative can and cannot do

A representative must act honestly, in good faith and with reasonable care, and must not act for their own benefit. They must keep the records needed to give a complete account of their financial actions. The court may require security, and must review the order where circumstances significantly change.

What to do next

While you sort out the legal route, avoid informal workarounds such as using your parent's cards or signing their name. Without authority, they can create problems for you later. Keep paying essential bills from your own funds only if you can, and keep every receipt.

• Ask your parent's doctor or nurse practitioner about their current abilities.
• Look for any existing power of attorney, committee order or will, including old ones.
• List income, accounts, debts, bills and property so a financial summary is easier to prepare.
• Talk with other family members early about who might serve as representative.
• Speak with a lawyer about whether a power of attorney is still possible or a court application is needed.

Frequently asked questions