How to Start Making a Power of Attorney in Quebec
Making a protection mandate in Quebec: the notarized or witnessed forms, homologation by the court, and the Curateur public's register and oversight.
How to Start Making a Power of Attorney in New Brunswick
Making an enduring power of attorney in New Brunswick: the lawyer rule for property powers, and the two-witness route for personal care only.
Applies in: New Brunswick
The short answer
In New Brunswick, any enduring power of attorney that appoints an attorney for property must be signed in the presence of a lawyer, with a written statement from the lawyer — two lay witnesses are not sufficient for a property power. Only a personal-care-only document may use two witnesses instead. The governing law is the Enduring Powers of Attorney Act, SNB 2019, c. 30.
This guide is process only. It walks New Brunswick's own execution and witness rules, as the Act states them. It gives no legal advice, and it does not advise you on who should be attorney, what powers to include, or whether your situation needs a lawyer. Capacity is stated only as the process gate the Act sets; this guide never assesses whether a person meets it. This guide does not re-summarize the national power-of-attorney guide: every rule below is New Brunswick's own.
What the document is
An enduring power of attorney in New Brunswick covers both property and personal care. A grantor appoints an attorney for property, an attorney for personal care, or both. Both appointments may be in a single document, and the same person may hold both roles. Two or more attorneys and alternate attorneys may be appointed. Adult means 19 or older. An irrevocable power of attorney is expressly not an enduring power of attorney.
Validity: the property and personal-care split
Section 4(1) sets the validity rules. In all cases, the grantor must have had capacity, and the document must be in writing, signed and dated by the grantor. If the grantor cannot sign, another person may sign at the grantor's direction and in their presence, who is an adult and not the attorney or the attorney's spouse, common-law partner or child.
The witness rule then splits on what is appointed:
- Attorney for property appointed, alone or with personal care. The document must be signed and dated in the presence of a lawyer, and include or be accompanied by a written statement by the lawyer declaring that they are a practising member of the Law Society of New Brunswick, reviewed the provisions with the grantor, were present when it was signed, and are of the opinion the grantor had capacity. Two lay witnesses are not sufficient.
- Only an attorney for personal care appointed. Either the same lawyer route, or signing and dating in the presence of two witnesses, both adults, neither the attorney nor the attorney's spouse, common-law partner or child, with both witnesses signing.
That split is the key point of the New Brunswick Act. Do not carry Manitoba's one-witness list or Saskatchewan's two-witness certificate route across the border: for a property power in New Brunswick, only the lawyer route works.
Electronic execution
Section 4.1 permits electronic execution: the lawyer-presence and statement requirements may be satisfied by real-time audio-visual electronic means, with counterparts. The document must still be in writing, signed and dated, and the lawyer must still review the provisions with the grantor and be of the opinion the grantor had capacity.
Who can be attorney
Under section 6, a person convicted of an offence involving dishonesty cannot be an attorney unless the enduring power of attorney states the grantor is aware of the conviction. A person providing health care or support services to the grantor for compensation cannot be an attorney unless they are the grantor's spouse, common-law partner or relative. An undischarged bankrupt may not be an attorney for property. A non-adult appointee may act only once they become an adult.
When the attorney may act
An attorney for property may act immediately after execution unless the document defers it to a date or to a determination of incapacity, under section 8. An attorney for personal care may act only once incapacity for that matter is determined, under section 9, by a person designated in the document or by an assessor — a medical practitioner, nurse practitioner, or prescribed class.
No prescribed form, no registration
No prescribed form appears in the opened validity section: validity turns on the lawyer statement or the two-witness route, not on a government form. A text search of the opened Act page for "register" returned no matches, so no registration or filing requirement appears in the Act as fetched. The Public Trustee is not a registrar or routine overseer of enduring powers of attorney. In the opened text, the Public Trustee appears as one of the persons who may apply to the court for orders under section 27, including declaring an enduring power of attorney valid despite non-compliance with section 4.
What the opened pages do not state
Lines 294 to 711 of the Act could not be opened at research time because the legislation site rate-limited the request, and the request was not retried. The exact text of the later sections — including attorney duties, records and accounting, termination, and court orders beyond the search snippets quoted in research — is therefore not verified from an opened page, and this guide states nothing from them. Whether the Act requires the attorney to sign an acceptance anywhere is not verified. Any prescribed-form regulation is not verified. The in-force date of July 1, 2020 comes from secondary sources only and is not stated in the opened lines.
Related guides:
- How to Start Making a Power of Attorney in Canada — the national power-of-attorney guide, which covers Ontario, British Columbia and Alberta and states none of New Brunswick's rules.
- How to Apply for Probate in New Brunswick — New Brunswick's probate process, which is where an estate is administered after death.
- How to Write a Will in New Brunswick — New Brunswick's will execution and witness rules.
- How to Start Making a Power of Attorney in Manitoba — Manitoba's one-witness rule from a closed professional list, for comparison.
- How to Start Making a Power of Attorney in Saskatchewan — Saskatchewan's two-route witnessing system, for comparison.
- How to Order a Death Certificate in Canada — the death certificate the executor needs as proof of death.
Changing, revoking, and ending the power
A grantor who still has capacity may change the document or end it. Under section 5(1), an alteration is valid only if it meets the same requirements as making the document: in writing, signed and dated, with the lawyer presence and written statement where an attorney for property is appointed, or with that lawyer route or the two witness route where only an attorney for personal care is appointed. Revocation under section 5(2) is simpler: a grantor with capacity revokes by stating in writing that the enduring power of attorney is revoked, or by destroying it, or directing another person to destroy it, with the intention of revoking it.
An attorney may resign under section 10 by providing written notice to the grantor, to the monitor appointed in the document if there is one, and to the other attorneys appointed in it if there are any, unless the document provides otherwise. Section 11 lists when an attorney's authority terminates: an event occurs that terminates the authority under the terms of the document; the grantor revokes the appointment or the document; the attorney resigns, ceases to have capacity, is unable or unwilling to act, or dies; the attorney becomes a person prohibited from being appointed; a court order prohibits the attorney from contacting the grantor; the attorney and the grantor are spouses or common law partners and they separate, unless the document provides otherwise; the court orders the authority or the document terminated; the court appoints a decision making supporter or representative for the grantor in the same area, unless the court orders otherwise; or the grantor dies. Where two or more attorneys are appointed to act together and the authority of one terminates, the remaining attorneys may continue to act, unless the document provides otherwise.
Making an enduring power of attorney in New Brunswick, in five steps
- Choose an attorney for property, for personal care, or bothBoth appointments may be in a single document, and the same person may hold both roles
- Put it in writing, signed and datedThe grantor must have capacity, and the document must be in writing, signed and dated by the grantor
- For a property attorney, sign before a lawyerThe lawyer must review the provisions with the grantor, be present when it is signed, and give a written statement of capacity
- For personal care only, two witnesses may do insteadTwo adult witnesses, neither the attorney nor the attorney's spouse, common-law partner or child, may witness a personal-care-only document
- Tell the attorney, and keep the original safeA property attorney may act immediately unless the document defers it; a personal-care attorney may act only once incapacity is determined
Questions people ask
What does a New Brunswick enduring power of attorney cover?
Both property and personal care. A grantor appoints an attorney for property, an attorney for personal care, or both. Both appointments may be in a single document, and the same person may hold both roles. Two or more attorneys and alternate attorneys may be appointed. Adult means 19 or older. An irrevocable power of attorney is expressly not an enduring power of attorney.
How is a New Brunswick enduring power of attorney witnessed?
It depends on what is appointed. If an attorney for property is appointed, alone or with personal care, the document must be signed and dated in the presence of a lawyer, and include or be accompanied by a written statement by the lawyer declaring that they are a practising member of the Law Society of New Brunswick, reviewed the provisions with the grantor, were present when it was signed, and are of the opinion the grantor had capacity. Two lay witnesses are not sufficient for a property enduring power of attorney. If only an attorney for personal care is appointed, either the same lawyer route or signing before two witnesses may be used.
Who can witness a personal-care-only enduring power of attorney in New Brunswick?
Two witnesses, both adults, neither the attorney nor the attorney's spouse, common-law partner or child, who both sign the document. That route is available only where no attorney for property is appointed. If the grantor cannot sign, another person may sign at the grantor's direction and in their presence, who is an adult and not the attorney or the attorney's spouse, common-law partner or child.
Can a New Brunswick enduring power of attorney be signed electronically?
Yes. The lawyer-presence and statement requirements may be satisfied by real-time audio-visual electronic means, with counterparts. That is section 4.1 of the Enduring Powers of Attorney Act. The document must still be in writing, signed and dated, and the lawyer must still review the provisions with the grantor and be of the opinion the grantor had capacity.
Who cannot be an attorney in New Brunswick?
A person convicted of an offence involving dishonesty cannot be an attorney unless the enduring power of attorney states the grantor is aware of the conviction. A person providing health care or support services to the grantor for compensation cannot be an attorney unless they are the grantor's spouse, common-law partner or relative. An undischarged bankrupt may not be an attorney for property. A non-adult appointee may act only once they become an adult.
When can the attorney act under a New Brunswick enduring power of attorney?
An attorney for property may act immediately after execution unless the document defers it to a date or to a determination of incapacity. An attorney for personal care may act only once incapacity for that matter is determined, by a person designated in the document or by an assessor, meaning a medical practitioner, nurse practitioner, or prescribed class. That split is the key timing difference in the Act.
Sources
- Government of New Brunswick, Enduring Powers of Attorney Act, SNB 2019, c. 30 — section 1 on adult, section 3 on the property and personal-care appointments, section 4 on validity and the lawyer-presence and two-witness routes, section 4.1 on electronic execution, section 6 on who may not be an attorney, and sections 8 and 9 on when each attorney may act.