Choosing a Substitute Decision Maker in New Brunswick: Who Can Serve and What to Consider

The Role Goes by a Specific Name in New Brunswick

Other provinces and countries call this person a healthcare proxy, a personal directive agent, or a substitute decision-maker. In New Brunswick, the legal title is Attorney for Personal Care, appointed through an Enduring Power of Attorney for Personal Care under the Enduring Powers of Attorney Act.

The terminology matters because New Brunswick's Health Care Directive — the document where you record your clinical preferences — cannot appoint anyone. It is strictly instructional. The only way to legally designate someone to make personal care and healthcare decisions on your behalf is through the EPA. If you skip the EPA and only sign a directive, your family has no one with recognized legal authority when a crisis arrives.

Who Is Eligible

The eligibility requirements are straightforward:

• Should be an adult (at least 19 years old) to act. New Brunswick permits appointing a person under 19, but that person cannot act until reaching adulthood.
• Must agree to the appointment — you cannot appoint someone without their knowledge or consent
• Must not be a person who provides paid healthcare or residential support services to you, unless that person is your spouse, common-law partner, or relative

That last restriction prevents a paid caregiver, home health aide, or nursing home staff member from being appointed as your attorney. The concern is the potential conflict of interest when someone who is paid to provide your care is also making decisions about what care you receive. The exception for family members acknowledges that some family caregivers are also compensated through programs like New Brunswick's Self-Managed Support (SMS) program.

Choosing Between Joint and Consecutive Attorneys

You can appoint more than one attorney, but you need to specify how they will work together:

Jointly — both attorneys must agree on every decision. This provides a check on unilateral choices but creates a practical problem: if one attorney is unreachable during an emergency, the other cannot act alone. Joint appointments also carry a higher risk of deadlock between two people who disagree about treatment.

Consecutively — you name a primary attorney and one or more alternates. The alternate steps in only if the primary attorney is unable or unwilling to serve. This is the more practical arrangement for most families. It ensures continuity without requiring coordination between multiple people.

If you appoint more than one and do not specify a different arrangement, their decisions are generally made by unanimous agreement. State how they will act so hospitals and clinical staff do not have to resolve the issue at the worst possible time.

The Obligations That Come with the Role

An Attorney for Personal Care in New Brunswick is not simply making their own judgment calls about your treatment. They carry a statutory duty to:

1. Follow your documented wishes — the instructions in your Health Care Directive take precedence over the attorney's personal preferences
2. Consider your values and beliefs — when the directive does not specifically address a situation, the attorney must make the decision that most closely aligns with what you would have wanted
3. Act in your best interest — when neither documented wishes nor known values provide guidance, the attorney must act in your best interest as a reasonable person would understand it

This hierarchy means the attorney's first job is to read and understand your Health Care Directive before a crisis occurs. An attorney who has never read the directive is functionally unprepared for the role.

Questions to Ask Before You Appoint Someone

Choosing the right person is not about who loves you the most — it is about who can carry out your wishes under pressure, including wishes they may personally disagree with. Before making your appointment:

Can they handle the emotional weight? Your attorney may need to authorize withdrawal of life support, refuse a treatment that the clinical team recommends, or consent to a nursing home placement that neither of you wanted. Some people cannot make those calls without being overwhelmed by guilt.

Are they geographically accessible? Clinical decisions often happen on short timelines. An attorney who lives in Vancouver and cannot reach a Moncton hospital within hours may not be the best primary appointment. Consider someone local as primary and the distant person as alternate.

Will they follow your wishes even if they disagree? This is the hardest question. If you refuse artificial nutrition in your directive and your daughter believes feeding tubes should always be used, she may not be the right choice — regardless of how close you are.

Do they understand the distinction between personal care and property? Your Attorney for Personal Care has no authority over your bank accounts or real estate. Those powers require a separate EPA for Property, which must be executed with a lawyer. Appointing the same person for both roles is fine, but they need to understand that the scope of their authority depends on which document you are discussing.

What Happens Without an Attorney

If you lose capacity and no EPA for Personal Care exists, your family has no automatic legal standing to make healthcare decisions. New Brunswick's Supported Decision-Making and Representation Act (effective January 2024) provides a pathway, but it requires a court application to the Court of King's Bench, a formal capacity assessment, a 20-day objection window for other family members, and potentially a hearing before a judge.

This process takes weeks at minimum. If you are in a hospital designated as an Alternate Level of Care patient during that time, the hospital begins billing a daily residential rate of $57.15 — and placement decisions about nursing homes cannot be made until someone with legal authority is in place.

The far simpler path is to appoint your attorney while you have capacity. The New Brunswick Advance Directive & Living Will Kit includes an attorney selection worksheet and a signing guide that walks both you and your chosen attorney through the process, the obligations, and the witnessing requirements.

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