Power of Attorney Mistakes in New Brunswick

Mistakes That Make the Document Worthless

A power of attorney that fails when the family needs it most is worse than having no document at all. It creates a false sense of security — the family believes they're covered, doesn't plan a backup, and discovers the problem only during a crisis when the stakes are highest. Every one of the mistakes below has caused real New Brunswick families to end up in court.

Mistake 1: Creating a Joint Donor EPA

Two parents cannot sign a single joint power of attorney. This is one of the most common and most costly mistakes. A married couple sits down together, drafts one document that says "We, John and Mary, hereby appoint our son David as our attorney," and believes they're covered.

They're not. A joint donor EPA is legally invalid in New Brunswick. Each person must have their own individual EPA with their own separate execution ceremony. John needs his own document. Mary needs her own document. They can appoint the same attorney, but the instruments must be separate.

Banks catch this routinely and reject the document. The family then faces two options: execute new individual EPAs (if both parents are still competent) or pursue a court application (if either has lost capacity). The court pathway costs thousands of dollars and takes months.

Mistake 2: Skipping the Lawyer for a Property EPA

New Brunswick requires a practicing lawyer from the Law Society of New Brunswick to witness and certify the signing of any EPA that includes property powers. This cannot be replaced by a notary public, a commissioner of oaths, or two lay witnesses.

An EPA for property signed without a lawyer is invalid. It doesn't matter how many witnesses signed, how clear the document is, or how genuinely the grantor intended to create it. Without the lawyer's capacity certificate, financial institutions will refuse to accept it.

The lighter standard — two independent adult witnesses — applies only to a standalone Personal Care EPA that contains no financial or property authority whatsoever.

Mistake 3: Using an Out-of-Province Template

Generic power of attorney templates from national websites like LawDepot or Willful are designed for the most common provincial frameworks. New Brunswick's Enduring Powers of Attorney Act (2020) has specific requirements that these templates may not satisfy — particularly the mandatory lawyer execution for property, the prohibition on joint donors, and the specific witness eligibility rules.

A template that was compliant in Ontario may produce an invalid document in New Brunswick. The execution rules, witness requirements, and capacity certification standards are provincially specific. A document that doesn't comply with New Brunswick law is a document that New Brunswick banks and courts will not accept.

Mistake 4: Failing to Date the Document

An undated EPA creates ambiguity about when it was created, when the lawyer's capacity certification was valid, and whether a subsequent revocation supersedes it. Every EPA should be dated on the day of signing — not before, not after. If the grantor signed on March 15 but the lawyer dated the certificate March 17, that inconsistency gives financial institutions a reason to scrutinize the document more closely than necessary.

Mistake 5: Using Pre-2020 Templates

The Enduring Powers of Attorney Act came into force on July 1, 2020, replacing the framework under the old Property Act. EPAs created before that date under the old rules remain valid, but new documents should comply with the 2020 Act. Templates that reference the Property Act, use old terminology, or don't include the capacity certification requirements of the current statute are outdated.

More importantly, the Supported Decision-Making and Representation Act (SDMRA) replaced the Infirm Persons Act on January 1, 2024. Any template or guide that still references guardianship under the Infirm Persons Act is working from repealed law. Families who follow outdated instructions may file the wrong forms or pursue the wrong court process entirely.

Mistake 6: Naming an Ineligible Attorney

The Act disqualifies certain people from serving as attorneys:

• Anyone under 19 years old
• An undischarged bankrupt (for Property EPAs)
• Anyone who provides paid health or support services to the grantor — unless they are a spouse, common-law partner, or close family member

Naming an ineligible person doesn't necessarily make the EPA invalid on its face, but it gives financial institutions and courts grounds to refuse to recognize the attorney's authority. If a bank discovers the named attorney is a paid home care aide with no family relationship to the grantor, they will reject the EPA.

Mistake 7: Not Distributing Copies

An EPA that sits in a filing cabinet is an EPA that nobody knows about. The attorney should have a copy. Every financial institution where the grantor has accounts should have a copy on file. The grantor's physician should have a copy of any personal care EPA or health care directive.

Banks can take weeks to process and verify an EPA presented for the first time during a crisis. Getting copies on file in advance means the attorney's authority is already recognized when the emergency happens.

Mistake 8: Ignoring the Record-Keeping Requirements

Regulation 2020-43 requires property attorneys to maintain detailed financial records from day one. Families who treat the attorney role as informal — "just help Dad pay his bills" — are setting up the attorney for liability. Without proper records (asset inventory, transaction ledger, expense logs), any family member can challenge the attorney's management and the attorney has no documentation to defend their actions.

This mistake doesn't invalidate the EPA itself, but it exposes the attorney to personal liability for any financial losses and can lead to a court application to remove and replace them.

How to Avoid All of These

The pattern across every mistake is the same: the family treated the EPA as a simple form to fill out rather than a legal instrument with specific provincial requirements. Working with a New Brunswick lawyer for the execution (mandatory for property EPAs anyway) catches most of these issues. For the preparation side — knowing which type of EPA to create, gathering the right information, organizing records — the New Brunswick Power of Attorney Kit walks through each step with checklists designed to catch these errors before they become problems.

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