Does a Power of Attorney End When the Person Dies in New Brunswick?

If you managed a parent's, spouse's or relative's money under a power of attorney, you may be wondering what happens to your role when they die. Many people assume they can keep paying bills or closing accounts. In New Brunswick, that is generally not the case.

This article explains when an attorney's authority ends, who takes over, and what to do in the first weeks. It is general information, not advice on your situation. A lawyer can confirm how it applies to you.

This article covers the law of New Brunswick.

Death ends the attorney's authority

Under New Brunswick's Enduring Powers of Attorney Act, an attorney's authority ends on a list of events, and one of them is that the grantor dies. The grantor is the person who signed the document. Once they die, the document no longer gives you power to act for them.

An enduring power of attorney is designed to continue despite the grantor's later incapacity. That protection covers incapacity only. It does not carry on after death. After death, the estate is dealt with by the executor or administrator appointed by the Probate Court.

Who takes over after death

On death, the real and personal property of the deceased vests in the personal representative, who is the executor or administrator, notwithstanding any will. This is why a third party dealing with land or other assets will usually ask for proof of that person's authority.

Letters Probate are granted on a will and officially recognize the executor's authority. Letters of Administration are granted where there is no valid will, and the Probate Court appoints an administrator, usually a family member or close friend. For land, a deed signed by a personal representative must be accompanied by the original will, letters probate or letters of administration, or the Land Registry will not register it. That requirement comes from Service New Brunswick's Form 41 criteria, which are dated, so confirm current requirements with Service New Brunswick.

If you are also the named executor, you still need that separate role. Being the attorney does not make you the personal representative, and you would generally want to confirm your authority through the Probate Court.

Other events that end an attorney's authority

Death is not the only event. The Act lists several, including revocation, resignation and the attorney's own incapacity. The authority can therefore end well before the grantor dies.

• The grantor revokes the document.
• The attorney resigns.
• The attorney becomes incapable.
• The grantor dies.
• Spouses or common-law partners separate, if the attorney is the grantor's spouse or partner, unless the document provides otherwise.

A court can also be asked to give directions, end an attorney's authority or replace the attorney. An attorney, the Public Trustee or an interested person may apply.

Representation orders also end at death

Some families have a court-appointed representative instead of, or alongside, a power of attorney. Since January 1, 2024, the Court of King's Bench can make a representation order under the Supported Decision-Making and Representation Act. A representation order ends on the represented person's death.

If an enduring power of attorney conflicts with a representation order, the order prevails. Either way, the same point applies at death: the representative's role ends and the estate passes to the personal representative.

Your duties and pay as attorney

While you were acting, you had to act honestly, in good faith, with reasonable care and within your authority. Where the grantor lacked capacity, you decided in order by their prior instructions, their current wishes, the decision they likely would have made, and then their best interests.

An attorney is not paid unless the document allows it, but may be reimbursed for reasonable expenses. Keep your records and receipts. The executor or administrator may ask what you did and what was spent, and clear records protect you.

What to do next

Stop acting on the power of attorney and avoid moving money or signing documents for the estate. Then work through these steps.

• Order death certificates through Vital Statistics. Any person who had a relationship with the deceased may apply, giving a reason and the fee; the long form certificate is $45 in person or by mail and $40 online.
• Notify the CRA at 1-800-959-8281 as soon as possible, and cancel any CPP or OAS benefits promptly with Service Canada at 1-800-277-9914.
• Find the will, if there is one, and work out who is named as executor. If there is no will, talk about who will apply for letters of administration.
• Identify who will apply to the Probate Court. Applications go to the probate office for the judicial district where the deceased lived or where their property was located.
• Gather your records of accounts, payments and expenses made as attorney.
• Speak with a lawyer if there is a dispute, no will, or a question about your own role.

Frequently asked questions