Challenging a Power of Attorney in New Brunswick

When a Power of Attorney Stops Feeling Right

You agreed to let your sibling manage your parent's finances under an enduring power of attorney. Six months later, money is moving in directions nobody can explain, and nobody is returning your calls.

This is one of the most common scenarios families face in New Brunswick — and it gets worse when people don't know they have legal options. The Enduring Powers of Attorney Act (2020) and the Supported Decision-Making and Representation Act (2024) both include mechanisms for challenging an attorney's authority, investigating suspected abuse, and removing someone from the role entirely.

Grounds for Challenging an EPA in New Brunswick

Not every disagreement justifies a legal challenge. New Brunswick courts take a dim view of meritless allegations, and under modern costs rules, a party who takes an unreasonable position can be ordered to pay full indemnity costs personally — not from the estate.

That said, legitimate grounds for challenging a power of attorney include:

• The grantor lacked capacity when signing. If your parent had already been diagnosed with moderate-to-severe dementia before they signed the EPA, the document may be invalid from the start. A property EPA must be signed before a licensed New Brunswick lawyer who certifies capacity, but personal care EPAs witnessed by two adults don't have that safeguard.
• Improper execution. A property EPA that was not signed in the physical or virtual presence of a practicing New Brunswick lawyer is not valid. No exceptions.
• The attorney is breaching fiduciary duties. Under General Regulation 2020-43, an attorney for property must maintain detailed financial records from day one — a complete asset inventory, liabilities list, income log, and transaction ledger. Refusing to provide these records is itself a red flag.
• The attorney has a disqualifying conflict. An undischarged bankrupt cannot serve as an attorney for property. Paid caregivers cannot serve unless they are a spouse, common-law partner, or close relative.
• Self-dealing or unauthorized gifting. Attorneys cannot make gifts from the grantor's funds unless the EPA specifically authorizes it. Loans to themselves or their family members are almost always a breach.

How Sibling Disputes Escalate

The pattern is depressingly predictable. One sibling provides daily care. Another lives in Halifax or Toronto and contributes money instead of time. The caregiving sibling, acting under the EPA, makes decisions the distant sibling disagrees with — selling the family home, choosing a particular long-term care facility, or spending the parent's savings on home modifications.

New Brunswick's Enduring Powers of Attorney Act imposes a statutory "duty to consult" on attorneys. That doesn't mean every sibling gets a veto, but it does mean the attorney should be documenting major decisions and keeping interested family members informed. When they don't, suspicion fills the gap.

Before jumping to a court challenge, consider whether the problem is actually lack of transparency rather than abuse. A structured family conversation — ideally mediated by a neutral third party — costs far less than litigation and preserves relationships that court battles almost always destroy.

The Court Process for Removing an Attorney

If informal resolution fails, New Brunswick law provides two pathways:

Pathway 1: The Grantor Revokes the EPA

If your parent still has mental capacity, they can execute a formal Revocation Deed. This is the simplest route — a capable adult can cancel their EPA at any time by signing a revocation in front of a lawyer (for property EPAs) or two witnesses (for personal care). The revocation must be formally served on the current attorney and all financial institutions that hold copies.

Pathway 2: Court Application Under Rule 71.1

If the grantor has lost capacity and cannot revoke the EPA themselves, interested parties can apply to the Court of King's Bench (Family Division) for a variation or termination order. The process works like this:

1. File a Notice of Application (Form 71.1A or 71.1C) at the regional Court of King's Bench registry. The current filing fee is $125.
2. Include supporting evidence — an affidavit detailing the specific concerns, any financial records or bank statements you've been able to obtain, and ideally a fresh Form 3 Capacity Assessment Report from a physician or nurse practitioner.
3. Serve all mandatory parties — the current attorney, the grantor, their spouse or common-law partner, parents, and all adult children or siblings aged 19 and older.
4. Wait the 20-day objection window. The current attorney has 20 days to file a formal Response (Form 71.1B).
5. Judicial review. If uncontested, a judge may issue the order in Chambers. If the attorney contests the application, expect a full hearing with legal representation on both sides.

Contested hearings can run $10,000 or more per side in legal fees. The court will weigh whether the estate should bear those costs, but if your allegations turn out to be unfounded, you may be paying your own bill — and possibly the other side's.

What Constitutes POA Abuse

Financial exploitation under a power of attorney is one of the most common forms of elder abuse in Canada. In New Brunswick, warning signs include:

• Unexplained withdrawals or transfers from the grantor's accounts
• The attorney's personal lifestyle improving while the grantor's care quality declines
• Bills going unpaid despite adequate funds in the estate
• Refusal to provide the financial records required under Regulation 2020-43
• Isolating the grantor from other family members or their physician

If you suspect criminal-level abuse (theft, fraud), you can file a report with the RCMP or your municipal police in addition to pursuing civil remedies. The criminal and civil processes run independently — a criminal conviction isn't needed to remove an attorney through the courts.

The Office of the Public Trustee can also investigate allegations of financial exploitation of vulnerable adults. Their involvement adds an independent authority, but their administration fees ($75 to $150 per hour plus a $300 file-opening fee) become a charge against the estate.

Protecting Against Future Disputes

The best defense against POA conflicts is building accountability into the document from the start:

• Appoint a monitor. The Enduring Powers of Attorney Act allows the grantor to name an independent third party who can request records and oversee the attorney's financial activities.
• Require joint decision-making for major transactions. If multiple children are named as co-attorneys, the EPA can specify that property sales, large withdrawals, or changes to investment portfolios require unanimous agreement.
• Build in reporting obligations. The EPA can require the attorney to provide quarterly financial summaries to named family members.

The New Brunswick Power of Attorney Kit includes templates for structuring these safeguards into an EPA, along with record-keeping worksheets that satisfy the Regulation 2020-43 requirements and make transparency the default rather than something families have to fight for.

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