Power of Attorney for a Medical Emergency in New Brunswick

When the Emergency Happens First

A stroke, a car accident, a sudden cardiac event — your parent is in the ICU and can't communicate. The hospital needs someone to authorize treatment decisions. You don't have a power of attorney.

This is the scenario families dread, and in New Brunswick it creates a specific legal gap. Without an enduring power of attorney for personal care, no family member has automatic authority to consent to medical treatment on behalf of an incapacitated adult. New Brunswick doesn't have a statutory hierarchy of substitute decision-makers for healthcare the way some other provinces do. The result: the medical team makes decisions based on clinical judgment, and the family watches.

What the Hospital Can and Cannot Do

Emergency rooms don't stop treating patients because paperwork is missing. Under common law and medical ethics, physicians can provide emergency treatment necessary to preserve life or prevent serious harm without consent from a substitute decision-maker. A surgeon won't wait for a court order before operating on a ruptured appendix.

But the gap opens once the immediate emergency stabilizes. Decisions about ongoing treatment — whether to continue ventilation, which rehabilitation facility to transfer to, whether to pursue aggressive versus palliative care — are not emergency decisions. They require consent, and without a personal care EPA naming an attorney, the medical team is in a difficult position.

In practice, most New Brunswick hospitals work informally with the closest family member for these decisions. The attending physician consults with the spouse, adult child, or parent, and treatment proceeds based on that consultation. But this informal authority has no legal backing. It works until it doesn't — and it stops working when family members disagree, when the treatment decision is controversial (withdrawing life support, for example), or when the facility needs a documented consent for liability purposes.

The 48-Hour Emergency Pathway

If your parent is incapacitated and no EPA exists, the Supported Decision-Making and Representation Act (2024) provides the formal pathway — but it's not fast. A Tier 3 Representation Order requires a capacity assessment, a court application, service on all adult family members, and a 20-day objection window. That's weeks, not hours.

For the immediate 48 hours, here's what you can realistically do:

Talk to the hospital social worker. Every major New Brunswick hospital has social workers who handle exactly these situations. They can explain the facility's informal consent process and help you understand what decisions the medical team can make independently versus what requires formal authorization.

Contact Legal Aid New Brunswick. If you qualify financially, Legal Aid can provide emergency legal assistance for capacity-related matters. Even if you don't qualify, they can refer you to lawyers who handle urgent SDMRA applications.

Request the capacity assessment immediately. The Form 3 Capacity Assessment Report — required for any SDMRA court application — can be completed by the parent's attending physician, a nurse practitioner, or a psychologist. If your parent is in the hospital, the attending physician is right there. Getting the Form 3 started during the hospitalization saves weeks compared to arranging a separate assessment later.

Prepare the court application package while waiting. You'll need a Notice of Application (Form 71.1A), an affidavit explaining the situation, and a Form 2 Financial Summary if the application includes property management authority. You don't need a lawyer to prepare these, though having one significantly improves your chances of getting the order without a hearing.

Emergency vs. Planned Healthcare Authority

The contrast between the emergency pathway and having an EPA in place is stark:

Preventing the Emergency Gap

The personal care EPA is the easiest document in New Brunswick estate planning to execute. Unlike the property EPA, which requires mandatory lawyer involvement, a personal care EPA can be signed before two independent adult witnesses — both at least 19 years old, neither of whom is the appointed attorney or married to or a child of the attorney.

This means you can execute a personal care EPA at home, today, for nothing more than the cost of printing the document and finding two witnesses. PLEIS-NB provides a free template that complies with the Enduring Powers of Attorney Act.

The document should include:

• The name of the person you're appointing as your attorney for personal care
• Any specific treatment instructions (equivalent to what used to be in a standalone healthcare directive)
• Whether the attorney can consent to admission to a long-term care facility
• End-of-life care preferences
• Organ donation wishes

Attach specific treatment instructions directly to the EPA — under the 2020 Act, a standalone healthcare directive can no longer appoint a substitute decision-maker. The directive and the EPA for personal care work together: the EPA gives your attorney authority to act, and the treatment instructions tell them what you want.

Deliver copies to your primary care physician, your appointed attorney, and keep the original in a place your family knows about. A signed personal care EPA in a filing cabinet is worth nothing if nobody can find it during a 2 a.m. hospital admission.

The New Brunswick Power of Attorney Kit includes both the personal care EPA preparation worksheets and the emergency SDMRA filing guide — covering both sides of this equation so families can either prevent the gap or close it as quickly as possible.

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