Power of Attorney in New Brunswick: Enduring Powers of Attorney Act

New Brunswick's Enduring Powers of Attorney Act, in force since July 1, 2020, governs both property and personal-care powers of attorney in one statute, and requires a lawyer's presence to appoint an attorney for property.

Information last verified on 2026-08-15. This article has not yet been reviewed by a licensed lawyer.

The governing law: Enduring Powers of Attorney Act

New Brunswick's power of attorney regime is set out in the Enduring Powers of Attorney Act, S.N.B. 2019, c. 30, consolidated on the province's official legislation site to January 1, 2024. For the concepts that work the same way across Canada, see our national power of attorney guide. The Act was assented to on December 20, 2019, but its own commencement clause says it did not take legal effect until July 1, 2020. That six-month gap matters because the Act is often described simply as "the 2019 law," which is only accurate for the assent date.

The Act did more than replace one older statute. In a single stroke it repealed relevant provisions of three separate prior laws:

• The Property Act, which had contained New Brunswick's old financial power of attorney provisions.
• The Infirm Persons Act, which had contained the old personal-care power of attorney provisions.
• The Advance Health Care Directives Act, a standalone 2016 statute, which was repealed in full. Health care directives now live inside the new Act itself rather than as a separate law.

A transition rule protects documents signed before the changeover: a property power of attorney, personal-care power of attorney, combined document, or health care directive with a named proxy that was validly made under one of the old laws before July 1, 2020 is deemed a valid enduring power of attorney or health care directive under the new Act. Those older documents are judged against the execution rules that were in force when they were signed, not the current ones.

Two roles, one Act

New Brunswick's Enduring Powers of Attorney Act covers two distinct appointments, and a grantor can make either or both:

• An attorney for property, who can manage bank accounts, pay bills, and handle financial and property matters.
• An attorney for personal care, whose authority covers personal care matters as the Act defines them: health care, diet, clothing, accommodation, support services, education, employment, recreation, and social activities.

A separate, simpler instrument, the health care directive, is covered further below. It is not the same thing as naming an attorney for personal care.

Who can grant a power of attorney

New Brunswick's capacity standard asks whether a person can understand information relevant to a decision and appreciate the reasonably foreseeable consequences of it. Capacity is presumed unless someone shows otherwise. The Act defines witnesses, assessors, and prohibited attorneys by reference to being an adult, but it does not state an explicit minimum age for the grantor themselves. The operative requirement for the grantor is the capacity test, not a stated age.

Execution: appointing an attorney for property is lawyer-only

The formality rules split depending on what is being appointed, and the property route is the stricter of the two.

Every enduring power of attorney must be in writing and signed and dated by the grantor. If the grantor is physically unable to sign, another adult can sign at the grantor's direction and in the grantor's presence, as long as that person is not the attorney or the attorney's spouse, common-law partner, or child.

If the document appoints an attorney for property, alone or combined with an attorney for personal care, it must be signed and dated in the presence of a lawyer. The document must also include, or be accompanied by, a written statement from that lawyer confirming that the lawyer is a practising member of the Law Society of New Brunswick, reviewed the document's provisions with the grantor, was present at signing, and formed the opinion that the grantor had capacity. New Brunswick does not offer a notarization option or a lay-witness option for a property attorney appointment. It is lawyer-only.

If the document appoints an attorney for personal care only, with no attorney for property, the grantor has a choice. The lawyer-attestation route above is available, or the document can instead be signed and dated in the presence of two witnesses, both adults, neither of whom is the attorney or the attorney's spouse, common-law partner, or child. Note precisely what the bar covers: it is the attorney's spouse, partner, or child who cannot witness. The grantor's own spouse, partner, or child is not barred from witnessing, unless that person also happens to be the named attorney.

New Brunswick allows execution by live two-way audio-video communication, with counterpart signing, for both the lawyer-presence and witnessing routes. This option was originally added as a temporary pandemic-era measure with a December 31, 2022 expiry date, and was made permanent by a later amendment (2022, c.46, s.1); this page has not confirmed the precise date that amendment came into force. There is no prescribed statutory form in either the Act or its regulation.

When an attorney's authority begins

For an attorney for property, the grantor chooses one of two options when making the document: the attorney may act only once the grantor lacks capacity, or the attorney may act regardless of capacity, meaning immediately and continuing through any later incapacity. If the document does not specify a start date or a capacity-determination trigger, the default is that the property attorney may act any time after the document is signed. Where the document ties activation to an incapacity determination and does not name a specific person to make that determination, an "assessor" (a physician, nurse practitioner, or a person in a class set by regulation) makes it.

An attorney for personal care is different by design: that appointment only ever activates once the grantor's incapacity has been determined. There is no immediate-effect option for a personal-care attorney. Separately, an irrevocable power of attorney cannot qualify as an "enduring" power of attorney under this Act.

Health care directives are a separate, simpler document

Because the Advance Health Care Directives Act was repealed and folded into the new Act, New Brunswick now has two distinct health-related instruments inside the same statute:

• An attorney for personal care has authority over health care decisions once incapacity is determined. For health care decisions specifically, the trigger is the health care provider's own determination that the grantor lacks capacity for that decision, not only the assessor's general determination.
• A health care directive is a separate document, in writing, with no prescribed form, that gives instructions for health care decisions to apply once the grantor lacks capacity. It does not by itself appoint anyone to make decisions. When there is no attorney for personal care to consult, a health care provider must make reasonable efforts to locate and follow the instructions in a directive.

Duties, gifts, and compensation

An attorney must act honestly and in good faith, exercise reasonable care, and stay within the authority the document grants. When deciding for a grantor who lacks capacity, the attorney must consult the grantor where reasonable and follow a cascading order of priorities: the grantor's prior instructions first, then the grantor's current wishes if reasonably ascertainable, then a substituted judgment of what the grantor would have wanted, and best interests only as a last resort.

Unless the document expressly grants the authority, an attorney for property has no power to make a gift on the grantor's behalf, and cannot delegate authority to someone else. Regardless of what the document authorizes, an attorney can never make, alter, or revoke the grantor's will, or do anything else the law otherwise prohibits.

Compensation defaults to none. Unless the document says otherwise, an attorney is not entitled to be paid for acting and can only be reimbursed for reasonable expenses. An attorney for property may, absent contrary wording in the document, renew or replace a beneficiary designation that names the same beneficiary, or redesignate a beneficiary to the grantor's own estate, but cannot otherwise change a beneficiary designation without a court order.

Revoking or ending a power of attorney

While the grantor still has capacity, they can revoke a power of attorney by signing a written revocation or by destroying the document, or directing someone else to destroy it, with the intent to revoke. Altering the document later must follow the same formality track that applied when it was first signed.

An attorney's authority ends automatically on any of several events: a triggering event stated in the document itself; the grantor's revocation; the attorney resigning, losing capacity, becoming unable or unwilling to act, or dying; the attorney becoming a person the Act prohibits from acting (for example, someone with an undisclosed conviction for dishonesty, a paid caregiver, or an undischarged bankrupt named as attorney for property); a court order barring contact between the attorney and grantor; the grantor and attorney being spouses or common-law partners who separate, unless the document says otherwise (see our guide to common-law relationships in New Brunswick for how the province defines that status); a court order terminating the appointment; a court-appointed decision-making supporter or representative taking over the relevant matter under New Brunswick's supported decision-making legislation; or the grantor's death.

New Brunswick has no registration or filing requirement for a power of attorney or health care directive, and the province's regulation under the Act does not establish a registry, even though the Act permits one to be created in the future.

Record-keeping, the Public Trustee, and fees

New Brunswick's regulation under the Act sets specific record-keeping duties. An attorney for property must keep itemized lists of the grantor's property, liabilities, and income sources, along with records of any gifts given and any compensation or reimbursement paid, plus supporting bank statements, invoices, and receipts. An attorney for personal care must keep a log of health care, accommodation, and support-service decisions, including dates and reasons.

The Public Trustee of New Brunswick, a service of the New Brunswick Legal Aid Services Commission, may act as an attorney for personal care or under a power of attorney, but only with its own prior written consent, and it has statutory standing to apply to court for directions regarding an enduring power of attorney. Its fees for acting as a committee of an estate are set by a separate fee regulation that was not independently opened for this article, so no specific fee figure is stated here.

There is no prescribed statutory form for an enduring power of attorney in New Brunswick, and no government fee for executing one. The mandatory lawyer-attestation step for a property attorney carries a private legal fee, and no official fee schedule for it was found.

For related estate-planning topics, see our overview of power of attorney across Canada, making a will in Canada, and what happens when someone dies without a will.

Disclaimer

This article provides general information about powers of attorney and health care directives in New Brunswick and is not legal advice. Two items in particular are not stated as settled fact here: the exact dollar fee schedule for Public Trustee committee services was not independently verified from the fee regulation, and the Act does not explicitly state a minimum age for the person granting the document, only a capacity test. Confirm current requirements with the Public Trustee of New Brunswick, the Law Society of New Brunswick, or a licensed lawyer before signing or relying on any power of attorney or health care directive.