How Mental Capacity Is Decided for Financial Decisions in New Brunswick

When a parent begins missing bills, giving money away or becoming confused about accounts, families often ask the same question: who gets to say a person can no longer manage their money? The answer is not a single moment or a single person. It depends on whether a power of attorney is in place and what you are trying to do.

This article explains in plain words how capacity is understood in New Brunswick, who makes the call, and what kind of evidence is used. It is general information, not advice on your family's situation.

This article covers the law of New Brunswick.

What capacity means in law

Capacity is not about whether someone makes choices you agree with. Under the Supported Decision-Making and Representation Act, a person has capacity if they can understand information relevant to the decision and appreciate its reasonably foreseeable consequences. The Enduring Powers of Attorney Act uses the same two-part idea.

• Understanding: can the person grasp the facts that matter for this decision, such as what an account holds or what signing a document does?
• Appreciating: can the person see the likely results of choosing one way or another, including for themselves?

A person is presumed to have capacity unless the contrary is demonstrated. The enduring power of attorney legislation likewise presumes capacity unless it is determined otherwise. So the starting point is that your parent can manage their own affairs, and the burden is on showing otherwise.

Who decides: three common routes

Who makes the determination depends on the route. The table sets out the main ones.

An assessor, for the power of attorney route, is a licensed medical practitioner or nurse practitioner, or a prescribed class of person. For court applications, assessors include medical practitioners, nurse practitioners and psychologists.

What evidence is used

Informal worries, such as a pattern of odd spending, are a good reason to look closer, but they are not the same as the formal steps the law sets out for deciding incapacity or applying to court. The formal evidence depends on the route: under an enduring power of attorney, incapacity is determined by the person named in the document or, failing that, by an assessor. An application to the Court of King's Bench for a representation order 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 assessment report must be dated no earlier than six months before the application is filed, unless the court orders otherwise. If the person refuses to undergo or continue an assessment, the report need not accompany the application. That does not mean the court will simply agree; it still has to be satisfied on the legal test.

Capacity can depend on the decision

The question being asked can differ depending on the route, and the law frames it differently for a personal care attorney than for a court-appointed representative. A personal care attorney, for example, acts only when the grantor lacks capacity for the matter at hand. In contrast, when the court appoints a representative it must be satisfied that the person lacks capacity to make all the decisions likely to arise, that each proposed representative consents and is suitable, and that a less intrusive measure is unavailable or would not meet the person's needs.

• A bad financial choice does not by itself show a lack of capacity, since the test looks at understanding and appreciation.
• Someone may manage daily spending but not a complex sale of property; the question is tied to the decision.
• The court looks at whether something less intrusive could meet the person's needs before it appoints a representative.

What to do next

• Write down specific examples of what you have seen, with dates, rather than general impressions.
• Find out whether your parent signed an enduring power of attorney and who is named in it.
• Read the document to see when the attorney's authority starts and who decides incapacity.
• Ask your parent's doctor or nurse practitioner whether a capacity assessment is appropriate.
• If there is no power of attorney, speak with a lawyer about a representation order in the Court of King's Bench.

If your parent still has capacity, they may be able to sign an enduring power of attorney themselves. A lawyer can explain the options based on the facts.

Frequently asked questions