Are you someone who would like to plan ahead for your financial and personal affairs?
It’s never too soon to plan for your financial and personal well-being in the years to come. An enduring power of attorney is a legal written document that helps you protect yourself and your assets during your lifetime. Enduring powers of attorney, unlike general powers of attorney, remain in effect when you lose your capacity. General powers of attorney are usually used for short-term situations involving property or financial matters – for example, if you will be out of the province and need someone else to deal with a financial issue for you.
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. If you have questions about an enduring power of attorney created before the new law came into force, it’s best to reach out to the Public Legal Education and Information Service of New Brunswick or seek legal advice from a lawyer.
In an enduring power of attorney document, you are called the grantor and the person you give the legal authority to act on your behalf is called the attorney.
There are two types of attorneys:
- attorney for property: someone who acts on your behalf when it comes to your property (house, land, vehicles, valuables, etc.) and finances, and
- attorney for personal care: someone who acts on your behalf when it comes to your health care and other personal care.
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.
Appointing an attorney is an important decision and should be someone you trust to make difficult decisions on your behalf. It can be a relative or friend. It does not have to be a lawyer.
Factors to consider in choosing the person(s) to act on your behalf:
- Training and experience to manage your affairs,
- Knowledge and understanding of your wishes,
- Likelihood to remain in New Brunswick and to have mental capacity for the duration of the power of attorney,
- Reliability,
- Availability and willingness, and
- Age (must be 19 years old or older.)
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.
Related to an enduring power of attorney for personal care is a health care directive, a document that you can use to give instructions about health care decisions that someone may have to make on your behalf if you lose your capacity. You cannot use a health care directive to appoint someone to make health care decisions on your behalf. If you want to do this, you can appoint an attorney for personal care in an enduring power of attorney. For more information about health care directives, click here
Who qualifies?
Like a will, it’s never too soon to create an enduring power of attorney. Anyone may lose their capacity – either temporarily or permanently – and need someone else to handle their affairs.
How do I get an enduring power of attorney?
Step 1
Take some time to consider various aspects of enduring powers of attorney, including:
- What type of enduring power of attorney would suit your needs best,
- When you would like your enduring power of attorney to start, and
- Decide how many attorneys you want to appoint.
Step 2
Discuss your enduring power of attorney with the person(s) you have chosen to make decisions on your behalf. You want to make sure they are willing to take on the responsibility. It is good to name an alternate in case something happens to your original attorney and they can no longer act on your behalf.
You can also choose another person(s) to act as a monitor who can oversee the conduct of your attorney(s.) It’s a good idea to speak with them about taking on that responsibility for you.
Step 3
While there are templates and online forms to create your own enduring power of attorney, these documents may not take into account the provisions required by law for a legally binding enduring power of attorney document in New Brunswick. You can create an enduring power of attorney for personal care without the advice of a lawyer. However, it is necessary to get a lawyer if you are creating an enduring power of attorney for property. You also need a lawyer if you are making an enduring power of attorney for property and personal care. There is a fee for this service, and it’s wise to ask the lawyer upfront how much it will cost.
Step 4
Once your enduring power of attorney is created, it should be kept in a safe place. If you have appointed an attorney for property, it’s a good idea to give a copy to your bank or any other financial institution. If you have appointed an attorney for personal care, it is wise to give a copy to your doctor.
FAQ
What is capacity?
Capacity is the ability to make decisions. It has two parts:
- the ability to understand the information that is relevant to decisions, and
- the ability to appreciate the reasonably foreseeable consequences of the decisions.
Capacity isn’t “all or nothing.” You can have the capacity to make some kinds of decisions and not others. For example, you could have the capacity to make decisions about your health care but not about your finances.
What happens if I lose capacity and I don’t have an enduring power of attorney?
A family member or someone else may have to apply to the court to be appointed your legal guardian before they have the authority to manage your affairs. If nobody is willing to act on your behalf, the Public Trustee – a government agency that protects the vulnerable in society – may be appointed. Having an enduring power of attorney can avoid the delay, cost and inconvenience of going to court to appoint a legal guardian. Having an enduring power of attorney also means you get to choose the person who will act on your behalf. If the court appoints somebody, it may not be the person you would have chosen, and they may not be aware of your wishes.
What are some of the reasons to have an enduring power of attorney for personal care?
If you become unable to make your own choices, an enduring power of attorney for personal care can allow the person you have appointed to make decisions about:
- Health care,
- Consent to medical treatment,
- Nutrition,
- Shelter,
- Clothing, and
- Support services.
How many people can I choose to act on my behalf?
You can choose as many people as you want. You can choose the same person(s) to act on your behalf for financial matters and personal care decisions, or you can choose different people to handle each of these matters. It is a good idea to choose one or more alternates if the person you choose can no longer act on your behalf.
Do I pay the person that I appoint as my attorney?
If you want your attorney to be paid, the enduring power of attorney should say how much they are to be paid. The attorney is entitled to be reimbursed for any reasonable expense incurred in acting as an attorney unless the enduring power of attorney states otherwise.
What are some of the changes in the new Enduring Powers of Attorney Act?
The new Act has brought significant changes to the oversight of enduring powers of attorney in New Brunswick. One of these is a provision that allows you to appoint a monitor who can oversee your attorney’s conduct. There is also a requirement that a new enduring power of attorney for property or for property and personal care be signed and dated in front of a practising New Brunswick lawyer, who must also certify that you have capacity at the time of signing the document. For an enduring power of attorney for personal care, the document may be signed and dated in front of two adult witnesses, who aren’t the appointed attorney or a spouse, common-law partner or child of the appointed 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.
Other resources
For more information on enduring powers of attorney in New Brunswick:
- Enduring Powers of Attorney Act
- Public Legal Education and Information Service of New Brunswick (PLEIS) – provides information about enduring powers of attorney, wills and other issues that may be helpful in planning ahead.
- The Office of the Public Trustee, click here for information.
- Government of Canada
- New Brunswick Financial and Consumer Services Commission – click here for its brochure on “Understanding the Power of Attorney.”
Disclaimer
Please note that the information contained here is not meant as a complete statement about the law around enduring powers of attorney, as legislation changes from time to time. If you would like legal advice around the creation of enduring powers of attorney for your specific life circumstances, it is advisable to contact a lawyer. To find a lawyer in your area, call the Law Society of New Brunswick at (506) 458-8540.
