Advance Directive Mistakes to Avoid in New Brunswick

Mistake 1: Having the Named Attorney Witness the Document

This is the most common error, and the most easily avoidable. Under the Enduring Powers of Attorney Act, the person you are appointing as your Attorney for Personal Care cannot serve as a witness to the document that appoints them. Neither can their spouse, common-law partner, or child.

The document requires two independent adult witnesses, both at least 19 years old. If one of your witnesses is disqualified, the EPA may be rejected when it is presented to a hospital or health authority. The fix is simple — use friends, neighbours, coworkers, or adult family members who are not in the attorney's immediate family circle.

Mistake 2: Using Only One Witness for a Combined Document

A standalone Health Care Directive must be in writing; the current government form uses one adult witness. An Enduring Power of Attorney for Personal Care requires two. Most families combine these into a single document — which is the recommended approach — but then use only one witness, following the directive's form rather than the EPA's.

When the document is combined, the stricter requirement applies: two witnesses. A combined document with only one witness may be treated as a valid directive (your instructions) but an invalid EPA (your attorney appointment) — leaving you with documented wishes and no one legally authorized to enforce them.

Mistake 3: Including Property or Financial Powers Without a Lawyer

An EPA for Personal Care can be executed at home without legal counsel. An EPA for Property (bank accounts, real estate, investments) must be executed in the presence of a practicing New Brunswick lawyer who certifies your capacity.

The trap: families who try to create a comprehensive "do everything" document that covers both personal care and property. If no lawyer is present, the financial portion is invalid — and the family discovers this when they try to access a frozen bank account during a medical crisis. The bank will not accept an EPA for Property that was not lawyer-certified.

The safest approach: keep personal care and property powers in separate documents. Sign the personal care EPA at home with your two witnesses. Handle the property EPA in a separate appointment with a lawyer.

Mistake 4: Vague Treatment Instructions

"No extraordinary measures" is the most common phrase in advance directives — and the least useful. It has no clinical definition. A feeding tube is extraordinary to one physician and routine to another. A ventilator is extraordinary in one context and standard post-surgical care in another.

Clinicians need specific instructions they can act on: "I refuse cardiopulmonary resuscitation." "I refuse mechanical ventilation if my condition is determined to be irreversible." "I refuse artificial nutrition via feeding tube." Each of these gives the clinical team a clear instruction with a defined scope.

The more specific your language, the more likely your wishes will be followed exactly as you intended — and the less room there is for interpretation disputes between your Attorney for Personal Care and the clinical team.

Mistake 5: Signing the Document but Never Distributing It

A perfectly executed directive that sits in a filing cabinet accomplishes nothing during a 2 a.m. cardiac event. Emergency medical personnel at your home will not know it exists. Hospital staff at the intake desk will not check your filing cabinet. Your attending physician cannot follow instructions they have never seen.

The distribution plan is as important as the document itself:

Your primary care physician — deliver a copy and request that it be scanned into the electronic medical record. If you are in the Horizon Health Network zone, it goes to Horizon's records. If Vitalité, it goes there. Request confirmation that the upload is complete.

Your Attorney for Personal Care — they cannot enforce a document they have not read. Give them a copy and walk through the key instructions together.

Your home — post a complete copy on the refrigerator in a bright envelope marked "EMERGENCY MEDICAL DIRECTIVE." Emergency medical personnel are trained to check the refrigerator for medical information.

Your wallet — a laminated card behind your Medicare card that reads: "I have an active Enduring Power of Attorney for Personal Care and Health Care Directive. In a clinical emergency, contact my Attorney: [Name, Phone Number]."

Mistake 6: Using a Pre-2020 Form Without Updating It

Before July 1, 2020, New Brunswick operated under the Advance Health Care Directives Act. That legislation was repealed and replaced by the Enduring Powers of Attorney Act. The old Act allowed you to appoint a "proxy" — a substitute decision-maker — within the directive itself.

Under the current law, a Health Care Directive can only contain instructions. It cannot appoint a decision-maker. That function requires a separate Enduring Power of Attorney for Personal Care.

If you signed a pre-2020 directive that names a proxy, the transition provisions deem it to be an Enduring Power of Attorney, with the proxy deemed to be an Attorney for Personal Care for healthcare matters. A pre-2020 directive without a proxy is deemed to be a Health Care Directive. A new combined document can still remove ambiguity about which documents your family and clinicians should use.

Mistake 7: Storing the Original in a Safe-Deposit Box

Bank safe-deposit boxes are designed to protect valuables from theft and fire. They are also designed to restrict access when the account holder is unavailable. If you lose capacity, your family's access may be restricted; after death, a bank officer may permit the named executor to open the box to retrieve the original will, a cemetery plot deed, or life insurance policies before probate. The bank may keep the remaining contents locked until Letters Probate are issued.

Storing the only copy of your advance care documents in a safe-deposit box means those documents are locked away at the exact moment they are needed. Keep the original in a secure but accessible home location — a bedside drawer, a home filing cabinet, or a clearly marked envelope — and distribute copies to your physician, your attorney, and your local hospital.

Getting Every Step Right

The New Brunswick Advance Directive & Living Will Kit includes a pre-signing checklist that catches each of these errors before the witnesses pick up a pen, a distribution log to track who has received copies, and clinician-ready treatment templates that replace vague language with specific, actionable instructions.

See more New Brunswick guides →