Dementia and Power of Attorney in New Brunswick

The Window Is Smaller Than You Think

A dementia diagnosis doesn't immediately strip someone of their legal capacity. In the early stages — mild cognitive impairment, early Alzheimer's — most people can still understand what a power of attorney does and make a valid decision to sign one. That window is the single most important opportunity your family will have.

Once that window closes, you cannot get a power of attorney. No amount of urgency, family agreement, or good intentions changes the law on this point. In New Brunswick, an EPA requires the grantor to have cognitive capacity at the moment of signing. A property EPA requires a practicing lawyer to certify that capacity. If your parent can't pass that threshold, the EPA route is gone.

What "Capacity" Means Under New Brunswick Law

Capacity isn't an all-or-nothing assessment. Under the Enduring Powers of Attorney Act, the grantor must be able to:

• Understand the nature and scope of the authority they're granting
• Appreciate the consequences of granting that authority
• Understand who they're appointing and why

A parent with early-stage dementia who knows they're naming their daughter to handle their bank accounts, and understands that this means their daughter will control their finances, has capacity for that purpose. A parent who can't remember who their children are or what a bank account is does not.

The lawyer certifying a property EPA must make this assessment in person. They're looking for functional understanding, not perfection. A parent who occasionally forgets the day of the week but can clearly articulate that they want their son to manage their investments if they can't do it themselves will typically pass.

Timing the Conversation

The hardest part isn't the paperwork — it's having the conversation before the diagnosis forces it. Families who wait until a crisis (a fall, a car accident, a wandering episode) often find themselves past the capacity threshold.

Practical triggers that should prompt immediate action:

• A new diagnosis. Any diagnosis involving cognitive decline — Alzheimer's, vascular dementia, Lewy body dementia, frontotemporal degeneration — means the clock is running. Schedule a lawyer appointment within weeks, not months.
• Repeated financial mistakes. Unpaid bills, duplicate purchases, falling for phone scams, confusion about account balances. These suggest declining executive function, which is exactly what a property EPA protects against.
• A physician's concern. If a family doctor or specialist raises cognitive concerns during a routine appointment, take it as a direct signal to get the EPA done while you still can.

Setting Up the EPA During Early Dementia

For a parent in the early-to-moderate stages of cognitive decline, the process works like this:

Step 1: Choose the right moment. Cognitive fluctuation is common in dementia. Mornings are typically better than afternoons. Schedule the lawyer appointment for a time when your parent is most alert and oriented.

Step 2: Prepare the intake information beforehand. The more work you do before the appointment, the shorter the meeting needs to be. List all bank accounts, investment accounts, real estate (including PID numbers), vehicles, insurance policies, debts, and income sources. Decide in advance whether the EPA will be immediate or springing, and whether co-attorneys (if any) must act unanimously.

Step 3: Execute with a New Brunswick lawyer. The lawyer will review the terms with your parent, assess capacity, witness the signing, and complete the certificate of capacity. For a personal care EPA, you can choose lawyer execution or two independent adult witnesses (both 19+).

Step 4: Distribute copies immediately. Don't wait. Deliver copies to every financial institution, the primary care physician, and the appointed attorney. Banks that receive the EPA before capacity is lost are far less likely to reject it later.

When It's Already Too Late for an EPA

If your parent has already lost the capacity to sign an EPA, you're in the emergency pathway created by the Supported Decision-Making and Representation Act (2024). This replaced the old Infirm Persons Act with a graduated three-tier system:

Tier 1 — Decision-Making Assistant: If your parent retains basic capacity but needs help gathering and communicating information, they can execute a Form 1 Decision-Making Assistance Authorization. This must be signed before a lawyer and does not require court involvement.

Tier 2 — Decision-Making Supporter: If your parent can participate in decisions with collaborative help, you can apply to the Court of King's Bench for a support order.

Tier 3 — Representative: If your parent is completely incapable of participating in decisions, you apply for a Representation Order — the closest equivalent to the old guardianship. This requires:

• A Form 3 Capacity Assessment Report from a physician, nurse practitioner, or psychologist
• A Form 2 Financial Summary listing all assets and liabilities
• A Notice of Application (Form 71.1A) filed with the Court of King's Bench ($125 filing fee)
• Formal service on the parent, their spouse, and all adult family members aged 19+
• A 20-day objection period before the court can act

The entire Tier 3 process takes weeks to months, depending on whether anyone objects. Legal fees for a contested application can exceed $10,000. The medical capacity assessment alone costs $500 to $2,500 depending on the practitioner.

This is why the EPA window matters so much. A property EPA executed during an early-capacity window costs a single lawyer appointment. Missing that window can cost the family thousands of dollars and months of delay.

Managing Finances Under a Dementia EPA

Once the EPA is activated — either immediately or upon a formal capacity determination — the attorney faces a specific set of obligations under New Brunswick law:

• Regulation 2020-43 record-keeping. Every transaction must be logged. Every receipt preserved. This isn't optional — it's a statutory requirement.
• No self-dealing. The attorney cannot borrow from the grantor, make gifts to themselves or their family (unless the EPA explicitly allows it), or mix the grantor's funds with their own.
• The duty to consult. The attorney should consult with the grantor wherever possible, even after capacity is diminished. Preferences expressed during lucid moments carry weight.
• Long-term care financial planning. If the parent needs nursing home placement, the attorney will need to navigate the provincial assessment process, the Standard Family Contribution Policy, and potentially the sale of the family home — all while maintaining fiduciary standards.

The New Brunswick Power of Attorney Kit includes a capacity-aware planning timeline, record-keeping templates that meet Regulation 2020-43 requirements, and a step-by-step walkthrough of both the EPA pathway (for families who still have time) and the SDMRA court pathway (for families who don't).

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