What Is an Enduring Power of Attorney in New Brunswick?

You may have heard the phrase enduring power of attorney from a bank, a doctor or a relative and wondered how it differs from a regular power of attorney. The key word is enduring: it is designed to keep working when the person who signed it can no longer make their own decisions.

This article explains what the document is, what an attorney can do, how it is signed, and when it ends under the Enduring Powers of Attorney Act of New Brunswick. It is general information, not advice.

This article covers the law of New Brunswick.

What it is and how it differs

An enduring power of attorney is a power of attorney in which the grantor appoints an attorney for property and financial affairs, personal care, or both, and which continues despite the grantor's later incapacity.

How an ordinary power of attorney works, and whether it carries on once the person can no longer decide for themselves, depends on the wording of the document and your situation, so it is worth confirming with a lawyer. What marks the enduring version is that it continues despite the grantor's later incapacity.

There is also a court route for adults who can no longer decide for themselves. The old committee system under the Infirm Persons Act was repealed on January 1, 2024, and applications are now for a representation order in the Court of King's Bench, which can appoint a representative for financial or personal care matters. The court must be satisfied, among other things, that a less intrusive measure is unavailable or would not meet the person's needs. How this applies to your family depends on your situation, so it is worth confirming with a lawyer.

What an attorney can do and when

If the document is meant to start only on incapacity, the determination is made by a person named in the document or, failing that, an assessor, being a licensed medical or nurse practitioner or a prescribed class. Capacity means the ability to understand relevant information and appreciate reasonably foreseeable consequences, and a person is presumed to have it unless determined otherwise.

Because timing depends on the wording, read the document closely to see whether it starts straight away or only when incapacity is established. If the wording is unclear, ask a lawyer to explain it before anyone relies on it.

How it must be signed

The grantor must have capacity, and the document must be in writing, signed and dated. An enduring power of attorney for property must be signed in front of a lawyer who gives a written statement confirming review and capacity.

There is one exception. A document covering personal care only may instead be witnessed by two adults who are not the attorney or a close family member of the attorney.

In practical terms, it helps to arrange the signing well before it is urgent. Think about who you want to name, what you want the document to cover, and any questions you want answered at the meeting.

The attorney's duties

• Act honestly, in good faith, with reasonable care and within the authority given.
• Where the grantor lacks capacity, decide in order by prior instructions, current wishes, the grantor's likely decision, and then best interests.
• Expect no pay unless the document allows it, though reasonable expenses may be reimbursed.

An attorney, the Public Trustee or an interested person may apply to court to give directions, terminate the authority or replace the attorney. If a provision of the document conflicts with a court representation order, the order prevails.

When the authority ends

Authority ends on revocation, resignation, incapacity of the attorney, and other listed events, including the death of the grantor. After death, the estate is dealt with by the executor or administrator appointed by the Probate Court, so an attorney cannot continue to act on the estate.

There is also a special case. Separation of spouses or common-law partners ends the authority of a spouse or partner who was named attorney, unless the document provides otherwise.

A court representation order also ends on the death of the represented person. Committees appointed under the former Act are deemed representatives for financial or personal care matters, subject to the conditions of the original order.

What to do next

• Decide who you trust, and name a backup in case the first choice cannot act.
• Think about whether you want property, personal care, or both covered.
• Decide whether the property attorney should act immediately or only after incapacity.
• Check any existing document for separation or other events that may have ended it.
• Keep the signed document somewhere your attorney can find it when needed.
• Talk with a lawyer, since property documents must be signed in front of one.

Frequently asked questions