What Happens If There Is No Power of Attorney in New Brunswick

Nobody Can Sign a POA on Someone Else's Behalf

This is the fundamental constraint that catches families off guard. If your parent has already lost mental capacity — from a stroke, advanced dementia, a traumatic brain injury, or any other cause — you cannot create a power of attorney for them. An EPA requires the grantor themselves to understand and sign the document. Once that window closes, it's closed permanently.

You cannot sign it on their behalf. Their spouse cannot sign it for them. No family member, no matter how well-intentioned, can step in and execute an EPA for someone who lacks the cognitive capacity to understand what the document does. Any document signed under these circumstances is invalid.

The Emergency Pathway: SDMRA Court Applications

New Brunswick replaced the outdated Infirm Persons Act on January 1, 2024, with the Supported Decision-Making and Representation Act (SDMRA). This newer law creates a three-tier framework for families who need legal authority over a loved one's affairs but don't have an EPA:

Tier 1 — Decision-Making Assistant. For adults who still have basic capacity but need help gathering information or communicating decisions. The adult signs a Form 1 authorization in the presence of a lawyer. This does not require a court application, and there are no government filing fees. But the adult must still have enough capacity to sign — so this tier is only available in early-stage situations.

Tier 2 — Decision-Making Supporter. For adults who can participate in decisions but need collaborative help. A family member applies to the Court of King's Bench for a support order. This requires a court application, a formal capacity assessment, and the involvement of a judge.

Tier 3 — Representative. For adults who are completely incapable of participating in decisions. A family member applies for a Representation Order — the closest equivalent to what used to be called guardianship. The representative gets full authority over the specified domains (financial, personal care, or both).

What the Court Application Requires

For a Tier 2 or Tier 3 application, the family must assemble:

1. A capacity assessment (Form 3). A licensed physician, nurse practitioner, or psychologist evaluates the adult's decision-making ability and documents their findings on Form 3. These assessments cost $500 to $2,500 depending on the practitioner and complexity, and wait times in rural New Brunswick can stretch to several weeks.

2. A Notice of Application (Form 71.1A or 71.1C). Filed with the Court of King's Bench registry. The filing fee is $125.

3. An Affidavit of the Applicant. A sworn statement detailing the applicant's relationship to the adult, current living arrangements, why less intrusive options are insufficient, and the applicant's suitability to act.

4. A Financial Summary (Form 2). Required if the application covers financial matters — a complete listing of the adult's assets, bank accounts, real estate, and liabilities.

Once filed, the application must be formally served on the vulnerable adult, their primary caregiver, any attorneys named in a prior EPA, and all of the adult's close family members — spouse, parents, and adult children or siblings who are at least 19.

These parties then have exactly 20 days from the date of service to file a formal response (Form 71.1B) if they want to object. If no objection is filed, a judge may review the application in chambers and issue the order without a formal hearing. If someone objects, it goes to a full hearing — and that's where costs escalate dramatically.

How Much This Costs

At minimum:

• Capacity assessment: $500 to $2,500
• Court filing fee: $125
• Lawyer preparation and filing: $1,500 to $5,000
• Service of documents: $200 to $500

If the application is contested by a family member — a sibling who disagrees about who should be representative, or a dispute about the level of support needed — legal fees can exceed $10,000. Contested hearings require evidence, medical testimony, and potentially multiple court appearances.

Compare that to a properly executed EPA, which costs $500 to $1,500+ through a New Brunswick lawyer while the parent is still capable.

The Public Trustee Option

If no family member is willing or able to apply, the Office of the Public Trustee can step in as a representative of last resort. The Public Trustee charges $75 to $150 per hour plus a $300 file-opening fee, with ongoing administration costs deducted from the adult's estate. The application process can take months, and the Public Trustee makes decisions based on statute rather than the family's preferences.

The 2026 legislative changes raised the small-estate threshold for Public Trustee involvement from $3,000 to $25,000, making it easier for the office to handle smaller estates directly. But for larger estates or situations where the family wants input into care decisions, a private court application is generally preferable.

The Only Way to Avoid This

An EPA executed while the parent is still competent bypasses the entire court system. The cost difference between a $500 to $1,500+ EPA and a $2,000 to $10,000+ court application is substantial, and the time difference is equally stark — an EPA can be executed in a single lawyer appointment, while a court application takes weeks to months.

The New Brunswick Power of Attorney Kit provides a complete walkthrough of the EPA setup process — including the intake worksheets that minimize lawyer fees — so families can get the right documents in place before the capacity window closes.

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