New Brunswick’s Enduring Powers of Attorney Act tightens witnessing requirements

New legislation in New Brunswick has clarified and consolidated the law on enduring powers of attorney and health care directives.

The new Enduring Powers of Attorney Act, SNB 2019, c 30, which came into force on July 1, addresses the prior overlap of the provisions coming from different sources of provincial legislation, such as the Property Act, the Infirm Persons Act and the Advance Health Care Directives Act.

The new legislation answers questions like who can be appointed as an attorney, when the attorney can exercise authority and what duties the attorney is expected to fulfill. It also lays out the duties of a health care provider in a situation wherein a patient has issued a health care directive or has appointed someone to exercise health care decisions. The legislation also introduces measures to promote accountability and to discourage financial abuse.

The term “enduring power of attorney” under the Act encompasses the appointment of an attorney for property, the appointment of an attorney for personal care, or both. Under the Act, a person is capacitated if they can comprehend the information needed to make decisions and if they can reasonably foresee the consequences of their decisions, with such capacity being presumed unless proven otherwise.

“Making a power of attorney is an important step that allows people to prepare for the possibility that they will lose mental capacity and become unable to make important decisions,” said Andrea Anderson-Mason, New Brunswick’s justice minister and attorney general, in a news release discussing the Act.

The Act requires, in the case of an appointment of an attorney for property or an attorney for property and for personal care, a written statement from a lawyer, who was present during the signing and who has reviewed the provisions of the document, that the lawyer believes that the grantor was capacitated to make the enduring power of attorney. This requirement does not apply to the appointment of an attorney for personal care only.

An article by Stewart McKelvey called attention to the numerous changes introduced by the newly effective legislation. For one, the Act now permits grantors to appoint a monitor who will see to it that the attorney is acting in accordance with the Act’s provisions, and who is empowered to request certain records from the attorney and to apply for certain court orders.

Another change is the new requirement for the attorney to consult with the grantor, if it is reasonable to do so, before deciding on their behalf. The Act specifies the actions that the attorney should take if the grantor lacks capacity.

Stewart McKelvey said that the new legislation would strengthen the legal protection of vulnerable individuals in the province. “Stricter witnessing requirements, extended oversight of attorneys, and increased clarity with respect to capacity evaluations all promote the responsible exercise of authority on the part of attorneys,” said the firm in the article.