Advance Health Care Directive in New Brunswick: What Changed in 2020 and What It Means Now

If you or a family member signed a health care directive in New Brunswick before July 2020, the legislation that created it no longer exists. The provincial government replaced the Advance Health Care Directives Act with the Enduring Powers of Attorney Act (EPA Act), which took effect in July 2020. Understanding what that transition means—and whether existing documents are still valid—is not a technicality. It determines who has legal authority to make health and personal care decisions when someone cannot make them for themselves.

What the Old Law Did

Before July 2020, New Brunswickers used the Advance Health Care Directives Act to accomplish two distinct things:

1. Record their own health care wishes in writing (a "living will" style directive)
2. Appoint a health care proxy—someone who would make medical decisions on their behalf if they lost capacity

These documents were widely used, particularly in palliative care planning. Many New Brunswickers signed health care directives in conjunction with their wills, and health care proxies often remained in place for years.

What the New Law Changed

The Enduring Powers of Attorney Act repealed the Advance Health Care Directives Act and consolidated personal care authority into a single framework. Under the new system, the document used to appoint someone to make health and personal care decisions is an Enduring Power of Attorney for Personal Care (EPA for Personal Care).

The EPA for Personal Care replaces what used to be called a health care proxy or health care representative. It can cover the same range of decisions—medical treatment, accommodation, personal needs—but it operates under different legal formalities and a different statutory framework.

Are Old Health Care Directives Still Valid?

This is the question most families dealing with a terminal illness or incapacity situation need answered clearly.

Yes. The Enduring Powers of Attorney Act contains a specific grandfathering provision. Health care proxies appointed under the old Advance Health Care Directives Act are automatically recognized as Attorneys for Personal Care under the new EPA Act. The people who were designated as health care proxies retain their authority without needing to re-execute any documents.

The written health care wishes recorded in an old directive—treatment preferences, resuscitation instructions, palliative care choices—also retain their legal force as expressions of the person's wishes. The person exercising authority over personal care (now called the Attorney for Personal Care) is still legally required to consider and follow those expressed wishes.

In practical terms: if a family member signed a health care directive in 2015 appointing a specific person as their proxy, that appointment is still valid. The appointed person is now legally treated as an Attorney for Personal Care under the 2020 legislation.

The New Formalities for EPA for Personal Care

If you are creating a new document—or advising someone who does not have any existing directive—the new EPA Act requires specific formalities depending on the type of EPA.

EPA for Property (covers financial and property decisions): Must be signed by a lawyer. A lawyer must witness the document and confirm that the person understood what they were signing and was not under undue influence.

EPA for Personal Care (covers health and personal care decisions): Can be signed before a lawyer or before two witnesses. Witnesses must be at least 19 years old. Neither witness can be the Attorney being appointed, and neither can be the spouse or child of the person signing the document.

Remote witnessing: Since December 2022, New Brunswick permanently allows EPAs and wills to be signed with remote witnessing via electronic communication (video conferencing, for example), provided at least one witness is a practicing member of the Law Society of New Brunswick. This is particularly significant for people in rural areas, remote communities, or those with mobility limitations.

When an EPA for Personal Care Ends

This is the point most relevant to funeral planning: an Enduring Power of Attorney—for either property or personal care—ceases to have any legal effect at the moment of death. The Attorney's authority is extinguished immediately.

At that moment, the right to make decisions about the body and the estate transfers to whoever has the next legal authority:

• If there is a valid will: the named executor
• If there is no will: the next of kin in the order established by the Devolution of Estates Act (legal spouse or common-law partner, then adult children, then parents, then siblings)

An Attorney for Personal Care under an EPA cannot make funeral arrangements or override the executor's authority after death. These are separate legal roles operating under separate authority.

The Divorce Trap: EPAs Are Not Automatically Revoked

One of the most dangerous misconceptions about EPAs in New Brunswick is that legal separation or divorce automatically revokes an EPA naming the former spouse as attorney.

Under the Enduring Powers of Attorney Act, this is not the case. An EPA naming an estranged ex-spouse as Attorney for Personal Care remains legally valid after separation—and after a divorce order—unless it has been explicitly revoked in writing.

If someone is losing capacity while also in the process of separating or divorcing, this issue requires immediate legal attention. An estranged former spouse could legally control medical and personal care decisions under an unrevoked EPA. A lawyer must draft an explicit revocation and a new EPA immediately in these circumstances.

Written Health Care Wishes Beyond the EPA

Separately from who has the legal authority to make decisions, the Enduring Powers of Attorney Act recognizes written expressions of a person's health care wishes. These can be recorded in a standalone document or within the EPA for Personal Care itself.

Health care providers are legally required to consider these expressed wishes when making treatment decisions. In end-of-life care situations, these written wishes have significant practical weight—they inform medical teams about resuscitation preferences, palliative vs. aggressive treatment, organ donation consent, and similar decisions.

For the New Brunswick Extra-Mural Program (EMP) palliative care context, having these wishes documented before the terminal phase reduces crisis decision-making and ensures the medical team and the appointed Attorney are aligned.

What Families Managing a Terminal Illness Should Do Now

If a family member is in palliative care, receiving EMP services, or has recently been diagnosed with a terminal illness and does not have an EPA for Personal Care in place:

1. Contact a lawyer in New Brunswick who practices estate and elder law.
2. Confirm whether any prior health care directive exists and who the named proxy was.
3. Confirm whether the named proxy is still the right person to hold this authority.
4. Execute a new EPA for Personal Care if no valid document exists or if circumstances have changed.
5. Ensure that written health care wishes—particularly around resuscitation, palliative sedation, and organ donation—are clearly documented within the EPA or in a separate document that the EMP team and hospital have on file.

For the full framework of pre-death and post-death authority in New Brunswick—including how executor authority over funeral arrangements interacts with the EPA, and what happens when family members dispute these decisions—see the New Brunswick Funeral Laws & Consumer Rights Guide.

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