SDMRA New Brunswick: How the Supported Decision-Making Act Changes Advance Care Planning

What the SDMRA Replaced

On January 1, 2024, New Brunswick's Supported Decision-Making and Representation Act came into force and completely repealed the Infirm Persons Act. The old law operated on a binary model: either you had capacity or you did not. If you did not, the court appointed a guardian — and that guardian held sweeping authority over your personal and financial affairs.

The SDMRA rejects this all-or-nothing approach. It starts from a presumption that every adult has capacity unless demonstrated otherwise, and it creates a graduated system of three tiers of support. The shift matters for advance care planning because it changes what happens when a person has not signed an Enduring Power of Attorney for Personal Care and then loses the ability to make their own decisions.

The Three Tiers

Tier 1: Decision-Making Assistant

A Decision-Making Assistant is the lightest form of support. The assistant's role is to help the adult gather information, understand options, and communicate decisions — but the adult retains full decision-making authority. Think of it as structured help, not substituted judgment.

How it is established: The adult and the assistant sign an authorization form. No court involvement is required. The adult must have capacity at the time of signing.

Who it is for: Someone who can make their own decisions but needs organizational support — perhaps navigating complex medical information, understanding financial statements, or communicating with healthcare providers when language or cognitive barriers make the process harder.

The limitation: Because the assistant has no independent decision-making authority, this tier does not help when a person can no longer participate in decisions at all.

Tier 2: Decision-Making Supporter

A Decision-Making Supporter collaborates with the adult to make decisions together. The supporter has more authority than an assistant — they can access information, participate in meetings, and help the adult weigh options — but the adult still participates in the process.

How it is established: Requires an order from the Court of King's Bench. The applicant must submit a capacity assessment from a registered physician, nurse practitioner, or psychologist confirming that the adult can make decisions with structured support.

Who it is for: Someone experiencing early-to-moderate cognitive decline who can still express preferences and participate in decision-making but needs someone alongside them.

Tier 3: Representative

A Representative is the closest equivalent to the old guardianship model. The representative makes decisions on behalf of the adult when the adult cannot participate in the decision-making process at all.

How it is established: Requires an order from the Court of King's Bench. A formal capacity assessment must demonstrate that the adult lacks the ability to make decisions even with support.

Who it is for: Someone with advanced dementia, a severe brain injury, or another condition that makes it impossible for them to participate in decisions about their own care.

Why This Matters for Advance Care Planning

The SDMRA is what happens when advance care planning was not done in time. If a person signs an Enduring Power of Attorney for Personal Care while they still have capacity, the Attorney for Personal Care can step in when capacity is lost — no court application, no formal capacity assessment beyond the clinical one required at the time of the medical crisis, no filing fees, no 20-day objection window.

If a person has not signed an EPA and then loses capacity, the family must go through the SDMRA's court process. Here is what that looks like:

1. Obtain a capacity assessment report from a physician, nurse practitioner, or psychologist (Form 3)
2. Prepare a court application using Notice of Application Form 71.1A and including a financial summary of the adult's assets, debts, and income
3. Serve notice on the adult, their primary caregiver, their spouse or partner, and all adult children and siblings
4. Wait 20 days for any family member to file a formal objection
5. Attend a hearing if any objection is filed (or receive the order without a hearing if no one objects)

The process is not unreasonable for what it is — the court is protecting a vulnerable person. But it takes weeks at minimum, it costs money in legal and filing fees, and it happens during what is already a crisis. Meanwhile, the adult may be in a hospital bed designated as Alternate Level of Care, accumulating $57.15/day in residential charges, with no one who has legal authority to consent to a nursing home placement or make treatment decisions.

The Capacity Window

The phrase "capacity window" describes the period of time during which a person can still legally execute an Enduring Power of Attorney. Once capacity is lost, the EPA option closes permanently — it is not something a family member can sign on the person's behalf.

For families dealing with a progressive diagnosis like Alzheimer's or vascular dementia, the window can close gradually and ambiguously. The person may have good days and bad days. The legal threshold under New Brunswick law is whether the person understands the personal care decisions involved and appreciates the reasonably foreseeable consequences of executing or failing to execute the document.

When capacity is questionable, a formal evaluation by a certified capacity assessor (physician, nurse practitioner, or psychologist) can establish whether the person is currently above the threshold. If they are, executing the EPA immediately — even if capacity is declining — is far preferable to waiting until the window shuts and forcing the family into court.

Planning Before the SDMRA Becomes Necessary

The entire purpose of advance care planning is to avoid Tiers 2 and 3 of the SDMRA. An Enduring Power of Attorney for Personal Care costs nothing to execute (two witnesses, no lawyer required for personal-care-only documents), takes an afternoon to complete, and gives your chosen Attorney for Personal Care the legal authority to act without court intervention.

The New Brunswick Advance Directive & Living Will Kit guides you through executing both the EPA and the Health Care Directive, explains the capacity threshold, and includes a comparison chart showing how each SDMRA tier compares to having an EPA already in place.

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