Understanding Powers of Attorney in New Brunswick: What You Need to Know, Estate Lawyer
Sep 14
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Choosing the right Power of Attorney (POA) is a crucial part of planning for the future. In New Brunswick, it's important to understand the distinction between financial and medical powers of attorney and the legal limitations involved.
Enduring Power of Attorney (EPA) in New Brunswick
The law governing enduring powers of attorney in New Brunswick has been compiled into one piece of legislation called the Enduring Powers of Attorney Act, which became law on July 1, 2020, for increased simplicity.
An Enduring Power of Attorney (EPA) in New Brunswick allows you to appoint someone to manage your financial and property affairs, even if you lose mental capacity. Unlike a regular Power of Attorney, which becomes invalid if the grantor becomes mentally incapacitated, an EPA remains valid during such a period, ensuring continuous management of your financial matters. If you wish to appoint both types of attorneys, you can do so in a single document. This is known as an enduring power of attorney for property and personal care. You can also do this by creating two separate documents, known as an enduring power of attorney for property and an enduring power of attorney for personal care.
Who Can Be Your Power of Attorney?
While you can choose anyone you trust to be your attorney, New Brunswick law has a few key limitations:
Your attorney must be at least 19 years old.
They must be mentally capable of handling the responsibilities.
While not legally restricted, it’s best to avoid appointing someone with a potential conflict of interest, like a beneficiary of your estate, unless you are confident in their ability to act in your best interest.
You cannot appoint someone to the role if they:
Provide health care services or support services to you and are paid for that work (unless they are your spouse, common-law partner or relative),
Have an undischarged bankruptcy (This restriction only applies to attorneys for property, not attorneys for personal care.), or
Have been convicted of an offence involving dishonesty, unless the enduring power of attorney states that you are aware of the conviction.
What are some of the changes in the new Enduring Powers of Attorney Act?
The new Act in New Brunswick allows for the appointment of a monitor to oversee the attorney's conduct. A practising New Brunswick lawyer must certify capacity at the time of signing for enduring powers of attorney. Personal care powers can be signed in front of two adult witnesses not related to the attorney.
For a fulsome explanation of the changes contained in the new legislation and how it may affect you, it’s advisable to contact a lawyer.
Key Legislation
Powers of Attorney in New Brunswick are governed by the Property Act, RSNB 1973, c P-19, and the Enduring Powers of Attorney Act, SNB 2019, c 30. Medical and personal care decisions are handled through the Personal Directives Act, SNB 2008, c P-7.05. These laws ensure that the rights of the grantor and attorney are protected and define the scope of powers granted.
Disclaimer
This blog post is for informational purposes only and does not constitute legal advice. For personalized assistance with drafting your Power of Attorney or to discuss your unique situation, please don't hesitate to contact us. We’re here to help guide you through the process.
