Living Will New Brunswick: What the Term Actually Means Under Current Law

Why "Living Will" Does Not Appear in New Brunswick Law

If you search for "living will" in New Brunswick's legislation, you will not find it. The term is widely used in everyday conversation and across American legal websites, but it has no statutory definition in the province. What people mean when they say "living will" — a written record of their medical treatment preferences for a time when they cannot speak for themselves — is legally accomplished through a Health Care Directive under New Brunswick's Enduring Powers of Attorney Act, which took effect on July 1, 2020.

The distinction is not pedantic. A document titled "Living Will" that was drafted using an American template, a generic Canadian kit, or an incomplete pre-2020 form may not meet the current provincial requirements. A pre-2020 New Brunswick directive is subject to transition provisions, so it should not be assumed invalid or current without checking what it contains. Hospitals within the Horizon and Vitalité health networks need to see documents that comply with the Enduring Powers of Attorney Act to integrate your wishes into their electronic medical records.

What a Health Care Directive Does

A Health Care Directive is a strictly instructional document. You use it to record specific clinical preferences: whether you want CPR attempted, whether you accept artificial nutrition through a feeding tube, whether you want to be transferred to a hospice, your preferences for palliative sedation, and your position on organ and tissue donation.

The key limitation: a Health Care Directive cannot appoint someone to make decisions for you. Under New Brunswick law, the only way to legally designate a substitute decision-maker for personal care is through a separate instrument — an Enduring Power of Attorney for Personal Care.

This is where New Brunswick's dual-document system diverges from what most people expect. In many American states, a "living will" both records wishes and names a healthcare proxy. In several other Canadian provinces, a single "personal directive" or "advance directive" does the same. New Brunswick splits these functions into two distinct legal instruments.

The Dual-Document System

To fully protect your medical autonomy in New Brunswick, you need both:

1. A Health Care Directive — your written clinical instructions. The statute requires a written document; the current government form uses one adult witness (minimum age 19). No lawyer required.

2. An Enduring Power of Attorney for Personal Care — appoints your Attorney for Personal Care (the person who will make decisions when you cannot). Requires two independent adult witnesses (minimum age 19). Neither witness can be the named attorney, their spouse, common-law partner, or child. No lawyer required for a personal-care-only EPA.

In practice, families frequently combine these into a single document titled "Enduring Power of Attorney for Personal Care and Health Care Directive." This is legally valid as long as both components meet their respective requirements. The combined approach avoids the risk of one document being accessible in an emergency while the other sits in a different filing cabinet.

What Happens If You Only Have a "Living Will"

If you have a document that records your medical wishes but does not appoint an attorney under the Enduring Powers of Attorney Act, you have half the protection you need. Here is what plays out in practice:

• Your treatment preferences are documented, and clinicians have a legal obligation to consider them.
• But if you lose capacity, no one in your family has automatic legal authority to consent to treatments, refuse placements, or coordinate with the Department of Social Development on nursing home waitlists.
• Your family would need to apply to the Court of King's Bench for a Supported Decision-Making or Representation Order under the Supported Decision-Making and Representation Act (effective January 1, 2024). That process involves a formal capacity assessment, filing fees, a mandatory 20-day objection window, and potentially a court hearing.

The practical cost of skipping the EPA and relying on a directive alone is measured in weeks of delay, legal fees, and the stress of a court application during a medical crisis.

Common Terminology Traps

New Brunswick families encounter confusing terminology from national websites, American resources, and even other provinces:

• "Healthcare proxy" — the American term for a person appointed to make medical decisions. In New Brunswick, this role is an Attorney for Personal Care under an EPA.
• "Personal Directive" — used in Alberta and Nova Scotia. Not a recognized instrument in New Brunswick.
• "Advance Decision to Refuse Treatment" (ADRT) — a UK legal term with no statutory weight in New Brunswick.
• "Medical Power of Attorney" — another American term. New Brunswick uses "Enduring Power of Attorney for Personal Care."

Using the wrong terminology on a document does not automatically invalidate it, but it creates ambiguity. Hospital intake staff and clinical teams work with provincial definitions. A document titled "Living Will" that otherwise meets the requirements of a Health Care Directive under the Enduring Powers of Attorney Act may still be accepted — but one that uses out-of-province witnessing rules or omits required elements will not.

Putting the Right Documents in Place

If your goal is to ensure your medical wishes are respected and someone you trust has the legal authority to act when you cannot, you need both instruments — executed correctly, witnessed properly, and distributed to the right people (your physician, your attorney, and the administrative records department of your local hospital).

The New Brunswick Advance Directive & Living Will Kit covers the complete dual-document system with step-by-step instructions, the witnessing rules specific to New Brunswick, and a distribution checklist so your documents are accessible when they are needed.

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