Parent Lost Capacity With No Power of Attorney in New Brunswick

If your parent can no longer make decisions and never signed a power of attorney, you may find that nobody has legal authority to manage their money or care. That is stressful, particularly when bills are due and institutions ask for paperwork you do not have.

This article walks through the court option in New Brunswick, who can apply, what the process involves and how to handle things in the meantime. It is general information; a lawyer can look at your family's facts.

This article covers the law of New Brunswick.

Why a power of attorney cannot be signed now

A power of attorney requires a grantor who has capacity, and a property one must be signed in front of a lawyer who confirms review and capacity in writing. Capacity means being able to understand the information relevant to a decision and appreciate its reasonably foreseeable consequences. If your parent no longer meets that test for this decision, nobody can sign one for them.

Everyone is presumed to have capacity unless the contrary is demonstrated. So before assuming the court route is needed, ask whether your parent may still be able to sign, perhaps with a health professional's input.

The court option: a representation order

The former committee system under the Infirm Persons Act was repealed on January 1, 2024. Now, an application is made to the Court of King's Bench of New Brunswick for a representation order, which can appoint a representative for financial matters, personal care matters, or both.

Applicants can be an interested person aged 19 or older, the Public Trustee, a trust company, or a prescribed class. Whether you count as an interested person depends on your situation, so it is worth confirming with a lawyer.

What the process involves

• Your own affidavit and an affidavit from the proposed representative.
• A capacity assessment report, dated no earlier than six months before filing unless the court orders otherwise.
• A financial summary, if financial powers are sought.
• The court must be satisfied that your parent lacks capacity to make all 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 their needs.
• Assessors include medical practitioners, nurse practitioners and psychologists.

If your parent refuses to undergo or continue an assessment, the report need not accompany the application. The detailed filing steps and timing depend on the court and the facts, so ask a lawyer.

Duties once a representative is appointed

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

If your parent already has a committee appointed under the former Act, that person is deemed a representative for financial or personal care matters, subject to the original order's conditions. If your parent has an enduring power of attorney that conflicts with the order, the order prevails. An enduring power of attorney continues despite the grantor's later incapacity, so it is worth searching your parent's papers carefully before you start a court application.

Handling bills in the meantime and next steps

What you can do for your parent without a court order or power of attorney depends on your situation, so it is worth confirming with a lawyer before you act. Contact creditors, explain the situation and ask about hardship options or payment arrangements, since some may be willing to wait while an application is underway. Keep a log of those calls.

• Find any existing power of attorney, committee order, will or health care directive.
• Ask your parent's doctor or nurse practitioner about an assessment and what it involves.
• Collect statements for accounts, pension income, debts, insurance and property.
• Agree within the family on who will put themselves forward as representative.
• Keep a record of any money you spend on your parent's behalf and of every receipt.
• See a lawyer about starting the application.

When your parent passes away, a representation order ends. The estate is then dealt with by the executor or administrator appointed by the Probate Court.

Frequently asked questions