Power of Attorney Duties and Responsibilities in New Brunswick

The Fiduciary Standard

An attorney acting under a New Brunswick enduring power of attorney is held to a fiduciary standard — the highest level of legal obligation one person can owe another. This is not a suggestion or a guideline. It is a binding legal duty that carries personal liability.

The core of the obligation is simple: the attorney must act in the grantor's best interests at all times, managing the grantor's affairs as carefully (or more carefully) than they would manage their own. Every decision — from paying a hydro bill to selling a house — must prioritize what is best for the grantor, not what is convenient for the attorney or the family.

This standard applies equally to Property EPAs and Personal Care EPAs, though the day-to-day obligations look different for each.

Property Attorney Duties

Mandatory Record-Keeping

General Regulation 2020-43 under the Enduring Powers of Attorney Act imposes specific record-keeping obligations on property attorneys from the first day they begin acting. These are not optional best practices — they are statutory requirements.

The attorney must compile and maintain:

An initial asset inventory. Every asset the grantor owns at the time the attorney begins acting — bank account balances, investment portfolios (RRSPs, TFSAs, non-registered accounts), real estate holdings with legal descriptions and Property Identification Numbers (PIDs), vehicles, jewelry, and other valuables. Each item must include its estimated value and the names of any co-owners.

An initial liabilities list. All outstanding debts — mortgages, lines of credit, personal loans, credit card balances — with the estimated or actual balance of each.

An income sources log. Recurring income from CPP, OAS, private pensions, rental properties, and investments, with net amounts and payment frequency.

A chronological transaction ledger. Every financial transaction made using the grantor's funds, with receipts for bill payments and purchases, supported by invoices and bank statements.

An authorized gifts log. If (and only if) the EPA explicitly permits gifting, the attorney must record the date, value, recipient, and reason for each gift. Gifting that is not authorized in the EPA is prohibited entirely.

An attorney compensation and expense log. Any money paid to the attorney for compensation (which must also be authorized in the EPA) and any reimbursements for reasonable expenses, with attached receipts.

Acting Within the EPA's Scope

The attorney can only exercise powers that the EPA grants. A broadly worded EPA gives the attorney the same authority over the grantor's property that the grantor themselves would have. A narrowly drafted EPA may limit authority to specific accounts, specific types of transactions, or specific dollar thresholds.

Key boundaries:

• No self-dealing. The attorney cannot use the grantor's assets for personal benefit, transfer the grantor's property to themselves, or enter into transactions where they have a conflict of interest — unless the EPA explicitly authorizes it.
• No gifting without authorization. The attorney cannot make gifts from the grantor's estate (including charitable donations or gifts to family members) unless the EPA contains specific language permitting it.
• Duty to consult. If the grantor is still capable of participating in decisions (even partially), the attorney should consult them. The SDMRA framework reinforces this principle of maximizing the person's involvement in decisions about their own affairs.

Personal Care Attorney Duties

A Personal Care attorney makes decisions about the grantor's healthcare, living arrangements, diet, clothing, hygiene, and access to social services. Their obligations include:

Following the grantor's known wishes. If the grantor left instructions through a Health Care Directive or through earlier conversations, the attorney must follow those wishes as closely as the current circumstances allow. The directive and the EPA work together — the directive says what the grantor wants; the attorney ensures it happens.

Choosing the least restrictive option. When deciding on living arrangements or care, the attorney should choose the option that maintains as much of the grantor's independence, comfort, and dignity as possible.

Consulting healthcare providers. Major medical decisions should involve the grantor's physicians and care team. The attorney has authority to make the final decision, but that decision should be informed by professional medical advice.

What Happens If the Attorney Fails

An attorney who breaches their fiduciary duty faces serious consequences:

• Personal liability for financial losses. If mismanagement or negligence causes the grantor to lose money, the attorney is personally responsible for compensating the grantor's estate.
• Court removal. Any interested party (another family member, a caregiver, a medical professional) can apply to the Court of King's Bench to have the attorney removed and replaced under the Enduring Powers of Attorney Act.
• Criminal charges. Deliberate financial exploitation of a vulnerable adult may constitute criminal offences such as fraud or theft under the Criminal Code.

Sibling disputes frequently arise around record-keeping. A long-distance sibling may question the local caregiving sibling's financial management — and without the detailed records required by Regulation 2020-43, there is no way to demonstrate that every dollar was spent appropriately. Meticulous record-keeping is not just a legal obligation; it is the attorney's primary defence against accusations of mismanagement.

The New Brunswick Power of Attorney Kit includes structured record-keeping templates aligned with Regulation 2020-43 — asset inventories, transaction ledgers, and expense logs — so the attorney can meet their statutory obligations from day one.

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