Enduring Power of Attorney New Brunswick: What Happens When the Person Dies

A family member who has been managing their parent's finances for years under an Enduring Power of Attorney sometimes continues writing cheques and accessing accounts after the death, believing their authority continues. It does not. In New Brunswick, all powers of attorney — financial and personal care — terminate the instant a person dies.

This termination is automatic, universal, and legally absolute. Acting under a power of attorney after death is unauthorized and can constitute fraud. Understanding why this happens, and what authority replaces it, is essential for anyone involved in caring for or administering the affairs of a New Brunswick resident.

What Is an Enduring Power of Attorney in New Brunswick?

New Brunswick's Enduring Powers of Attorney Act, which came into force on July 1, 2020, governs how residents of the province grant decision-making authority to others. The 2020 Act modernized the previous framework significantly.

Under the current law, there are two types of Enduring Powers of Attorney:

Enduring Power of Attorney for Property: This authorizes the attorney (the person granted the power, not a lawyer) to make financial and legal decisions on behalf of the grantor. It can be broad — covering all financial decisions — or limited to specific transactions. Crucially, it is "enduring" because it survives mental incapacity. A regular power of attorney would become invalid if the grantor lost mental capacity; an enduring power continues to operate through incapacity. This is the document typically used to allow an adult child to manage a parent's banking, investments, and bill payments during a period of cognitive decline or serious illness.

Enduring Power of Attorney for Personal Care: This authorizes the attorney to make healthcare and personal care decisions when the grantor is unable to make those decisions themselves. It covers decisions about medical treatment, accommodation, and daily care.

The 2020 Act also introduced the Advance Health Care Directive (HCD), a separate document that records a person's healthcare wishes but does not appoint a decision-maker. An HCD is valid without witnesses or a notary, but it can only provide instructions — it cannot authorize someone to act on the grantor's behalf. To actually appoint a healthcare decision-maker, a person needs an Enduring Power of Attorney for Personal Care.

The Moment of Death: Complete Termination

Both types of Enduring Power of Attorney terminate at the exact moment of death. There is no grace period, no transitional authority, and no exception.

The legal reasoning is straightforward: a power of attorney is an instrument of agency — it allows one person to act on behalf of another living person. When the principal (the person who granted the power) dies, there is no longer anyone for the attorney to act on behalf of. The agency relationship cannot exist without the principal.

This means:

• Any banking transactions, bill payments, or asset transfers made after the date and time of death using a power of attorney are unauthorized
• A bank that processes transactions under a power of attorney presented after learning of the account holder's death can face liability
• The attorney who continues acting after death may face legal consequences, including civil liability for any misappropriation of estate assets

What Replaces the Power of Attorney at Death

The executor named in the deceased's will immediately assumes authority over the estate from the moment of death. The executor's authority derives from the will itself — a critical distinction. The executor does not need to wait for Letters Probate to begin securing assets, but their formal legal authority to transact with banks and the Land Registry requires the court-issued Letters Probate.

In practical terms, the transition from power of attorney to executor authority means:

Before death: The attorney under the EPA manages the person's finances and health decisions, with authority that survives incapacity.

At death: The EPA terminates. If the person named as attorney is also named as executor in the will, their role changes entirely — they are now acting as executor, under different legal authority, subject to different rules.

After death: The executor secures assets, orders death certificates, notifies agencies, and begins the probate process. Transactions require the executor to identify themselves as "Executor of the Estate of [name]" — not as attorney under a power of attorney.

If there is no will, the EPA still terminates at death. The family must apply to the Probate Court for Letters of Administration to obtain legal authority to administer the estate. Until Letters of Administration are granted, no one has formal authority to transact with estate assets.

The First 48 Hours: What the Executor Should Do Immediately

If you were acting under a power of attorney for someone who has just died, and you are also named executor in their will, your first steps are:

Stop all transactions immediately. Any payment, transfer, or withdrawal made after the date and time of death using the EPA is unauthorized. Review recent transactions carefully. If any payments were made that technically occurred after death (for example, an automatic bill payment that processed overnight), document this and disclose it to the estate's accountant.

Locate the original will. The will is the source of the executor's authority. If the will is at a lawyer's office or in a bank safety deposit box, contact them immediately. To access a safety deposit box held in the deceased's sole name, the executor typically needs a proof of death document from the funeral home and government identification.

Secure physical assets. Change locks on the deceased's home, secure vehicles, and ensure no unauthorized persons have access to property. The executor's duty to preserve estate assets begins immediately.

Notify the bank of the death. Present the death certificate and the original will to freeze sole accounts in the deceased's name. Most New Brunswick banks will allow payment of funeral expenses from a frozen account upon presentation of the funeral invoice — this is a practical allowance for the most urgent estate expense.

Do not continue paying ongoing bills from estate accounts without authority. The executor can pay clearly urgent expenses (funeral, utilities to maintain the property) in the early days, but unauthorized or premature distributions to beneficiaries create liability.

Personal Care Directives: A Separate Document

The Advance Health Care Directive (HCD) that records a person's healthcare wishes has no relevance to estate administration after death. It recorded wishes for end-of-life medical care — once death occurs, those instructions have served their purpose and the document has no further legal effect.

Similarly, the Enduring Power of Attorney for Personal Care terminates at death. The healthcare attorney has no authority to make decisions about the deceased's remains, funeral arrangements, or personal effects. The right to control funeral and burial decisions in New Brunswick passes to the next of kin according to a statutory hierarchy — or to whomever the deceased directed in their will or in a pre-arranged funeral contract.

Common Mistakes to Avoid

Continuing to pay bills under the EPA after death. Even routine payments like utilities and subscriptions become unauthorized transactions once the person has died. The executor should redirect these through the estate account.

Assuming the EPA covers funeral decisions. Powers of attorney deal with the living. Funeral decisions belong to the executor or next of kin, not to the person who held the EPA during life.

Treating the EPA and the executor role as the same. Many families have the same person serve as both attorney under the EPA and executor under the will. But these are legally distinct roles with different authority, different rules, and different liability frameworks. The moment of death is the line between them.

Delaying notification to the bank because "you have the EPA." Banks that are notified of a death will freeze accounts. Banks that are not notified and then process transactions under an EPA after death face scrutiny. Notify the bank immediately.

From EPA to Estate: The Full Administration Process

The transition from caring for someone under a power of attorney to administering their estate is one of the most disorienting experiences an executor faces. The caregiving role ends abruptly; the administrative responsibility begins immediately, under different rules, with different paperwork and different agencies.

New Brunswick's estate settlement process involves the Probate Court, SNB Vital Statistics, the CRA, Service Canada, the SNB Land Registry, and multiple financial institutions — each with their own forms, timelines, and requirements.

The When Someone Dies in New Brunswick — Estate Settlement Guide is designed for exactly this transition. It covers what authority you have as executor in the first 48 hours, how to secure assets without Letters Probate, what happens with the probate court application, and how to reach final distribution in a way that protects you from personal liability. The guide addresses the specific New Brunswick framework — including the 2020 EPA legislation, the 2026 small estate changes, and the current probate tax structure — rather than generic Canadian estate advice that does not reflect the province's actual rules.

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