Power of attorney. It’s a term many hear for the first time when they begin their estate planning journey, but what is it? A power of attorney or POA document is a legal document which gives another person the right to exercise authority to make decisions on your behalf and represent you to others.
The person you trust to hold this position becomes what the legal world calls, in this case, the attorney or agent, and you become the grantor or donor. Your attorney does not need to be a lawyer either.
If this sounds like too much power for one person to have, it doesn’t have to be. Giving legal authority can be as general or as specific as you want it to be.
While this article will take a closer look at the power of attorney documents in New Brunswick, you can also read our Power of Attorney 101 guide to get a better understanding of POAs across Canada.
What is An Enduring Power of Attorney in New Brunswick?
An enduring power of attorney is a legal document where you appoint a person or persons to make decisions on your behalf should you lose your own capacity to do so.
Losing your capacity, in the eyes of the law, means losing your ability to make your own decisions, which can occur due to an accident, an illness, a neurological condition such as dementia, or another cause.
Difference between POAs and EPAs
The reason an enduring power of attorney, or EPA, includes the word “enduring” is because the authority you give to your chosen attorney continues even if you lose your capacity. This is different from a POA, where your attorney’s authority ends when you, the grantor, lose capacity.
EPAs also have two types: power of attorney for property and power of attorney for personal care, which we discuss later in this article.
Changes in EPAs since 2020
In July 2020, the government of New Brunswick brought the Enduring Powers of Attorney Act into effect. This new Act replaced everything which was previously under the Property Act, Infirm Persons Act, and Advance Health Care Directives Act with respect to powers of attorney. The Act combines all these former legislations into a single statute and includes changes regarding creating a power of attorney document in New Brunswick, such as new titles, new roles, and new requirements.
Changes in Titles
- The person acting on your behalf in a POA is now referred to as an attorney instead of a proxy
- The Advance Health Care Directive title has changed to Power of Attorney for Personal Care
- The additional instructions for medical decisions involved in an Advance Health Care Directive document can now be included in a Power of Attorney for Personal Care document as well
Changes in Roles
- Now, an appointed person or persons of your choice can also determine your capacity, instead of just a doctor
- Monitors can be appointed to make sure attorneys are working properly
Changes in Requirements
- The following cannot be appointed as your attorney
- Person(s) who are your healthcare providers
- Person(s) previously convicted of crimes involving dishonesty
- Person(s) with an undischarged bankruptcy
- A lawyer must sign your Enduring Power of Attorney for Property document and provide a written statement that they witnessed you sign it
- This is not required for a Power of Attorney for Personal Care document
For further information on the 2020 changes to POAs in New Brunswick, please read our New Brunswick Power of Attorney Update.
What is a Power of Attorney of Property in New Brunswick?
In an EPA for property document, you choose to give someone enduring power of attorney for your property and financial affairs, which gives them the ability to act and make decisions about these assets on your behalf. This can include deciding what happens to your house, your land, and any vehicles you may own.
What is a Power of Attorney for Personal Care in New Brunswick?
In an EPA for personal care document, you choose to give someone enduring power of attorney for your health and other personal care matters. This attorney cannot exercise authority until you, the grantor, have been determined to lack capacity following a capacity assessment.
While at its heart, this EPA is for making sure someone can take care of your affairs should you be unable to, the degree to which authority can be given for personal and medical care can differ across provinces and territories.
EPA for Personal Care in Different Provinces
In Ontario, this document is also called a power of attorney for personal care.
In British Columbia, the equivalent document is a representation agreement.
In Quebec, the equivalent document is a protection mandate.
Is an Advance Health Care Directive the Same as a Power of Attorney for Personal Care?
Prior to July 2020, a power of attorney for personal care in New Brunswick was called an Advance Health Care Directive. After July 2020 and the Enduring Powers of Attorney Act, this document is now referred to as a Power of Attorney for Personal Care.
One important distinction about this change in legislation is that you are now no longer able to use a healthcare directive to appoint someone to make healthcare decisions on your behalf. That can only be done through the appointment of an attorney through an EPA for personal care.
How Do I Make an Enduring Power of Attorney in New Brunswick?
You must make an EPA for property document with the help of a lawyer, as they need to sign and provide a witness statement for it.
For an EPA of personal care document, there are two different ways you can make one:
- Get help from a lawyer
- Use government forms
Make an EPA For Personal Care with a Lawyer
While lawyers are necessary for the creation of EPA for property documents, you can also consult them if you’d like to make an EPA for personal care. Lawyers can provide expertise and insights that many people find reassuring when navigating the estate planning process.
Choosing a lawyer to help create your EPA for personal care can, however, be an expensive and lengthy process, which may add additional stress, confusion, and fatigue to your estate planning experience.
Make an EPA for Personal Care with a Government Form
If all you want is a straightforward form that you can fill out and store alongside your will and other legal documents, you can find the form for EPA for personal care on the Public Legal Education and Information Service of New Brunswick website.
Other Frequently Asked Questions About Power of Attorney in New Brunswick
Why Do New Brunswick Residents Need a Power of Attorney?
Residents of New Brunswick do not need a power of attorney, though it is recommended. If you don’t have an EPA, the court may appoint a legal guardian in your place, and while a loved one or friend may apply for the role, the process is both expensive and time-consuming.
If no one around you is able to become your legal guardian should you lack capacity, the court may ask a Public Trustee to assume the role.
Do You Need A Lawyer For A Power Of Attorney In New Brunswick?
EPAs for property need the help of a lawyer, and the lawyer must sign both the document and a witness statement. This is also the case for a combined EPA for property and personal care document.
But if you only want an EPA for personal care, a lawyer is not required. When you make your EPA for personal care, you’ll have the option of either including a lawyer’s signed witness statement or getting it signed by two witnesses instead.
Who Can Witness A Power Of Attorney In New Brunswick?
EPAs for property must be witnessed by a lawyer, while EPAs for personal care must be witnessed by either a lawyer or two witnesses who are at least 19 years old, who are not your attorney for personal care, and not your spouse, common-law partner, or the child of your attorney for personal care.
Does A Power Of Attorney Need To Be Notarized in New Brunswick?
Your EPA for property only needs to be notarized if your attorney is trying to sell or act on behalf of a property you own. Notarization is not required to make your EPA for property legally valid, nor is it required if you do not own any property.
Peace of Mind Through Preparedness
When you’re estate planning, creating a will and enduring power of attorney documents can be essential in giving you the peace of mind you need to know that you, your family and your loved ones will be taken care of in the future, no matter what happens.