NB Power of Attorney for Personal Care
I am pleased to announce that the Power of Attorney Wizard can now be used to create a Power of Attorney for Personal Care for individuals in New Brunswick:
So, if you live in New Brunswick, you can now create a Last Will and Testament using our Will-O-Matic Wizard. And you can also create a Power of Attorney for Property and a Power of Attorney for Personal Care using our Power of Attorney Wizard.
If you’d like to know more about Powers of Attorney for Personal Care in New Brunswick …keep reading… this is the second blog on this topic. Click here to read the first blog.
Caveat: the following is not legal advice and is provided for educational purposes only. If you need legal assistance, seek professional legal help.
What are the legal requirements to have a valid Power of Attorney for Personal Care?
To have a valid Power of Attorney for Personal Care under the Infirm Persons Act:
- It must be written and signed by the Principal and be witnessed by an adult other than the Attorney for Personal Care: section 40(2). It need not be in a set form or template.
- The document must authorize a person to be an Attorney to make decisions, on the Principal’s behalf, concerning the Principal’s personal care.
- The Principal (i.e. the person giving the power of Attorney) must have capacity to give the power of Attorney (i.e. through knowledge, awareness, appreciation, etc.).
Is a lawyer required?
The Substitute Decisions Act, 1992 does NOT require that a lawyer prepare, witness, notarize, etc. your Power of Attorney for it to be legal. That said, if you have a complicated situation (e.g. specific attorneys for specific purposes, a limited scope power of attorney, etc.), it may be worthwhile to engage a lawyer to prepare a Power of Attorney for Personal Care for you. If you are worried that a party may challenge your ability to make the power of attorney (e.g. based on you lacking the mental capacity to do so at the time you signed it), then you should also consult a lawyer. They will know how to legally address this situation to reduce the risk of future challenges – for example, by getting a medical report confirming your capacity at the time you make the Power of Attorney.
When does a Power of Attorney for Personal Care become effective?
A Power of Attorney for Personal Care takes effect when a person becomes mentally incompetent concerning a personal care decision. The Infirm Persons Act defines a defines a mentally incompetent person as someone whose mind is affected either from birth, disease, injury or by a disorder to such a degree that they require care, supervision, and control for their own protection, the protection of others, or the protection of their property. A mental competency assessment can be undertaken by a health care professional to determine if a person has the specific ability needed to make decisions about their well-being. The assessment tries to determine which abilities a person still has, and which abilities a person may have lost. The assessment is intended to be thorough and fair. The kinds of health care and services provided to the person may depend on the outcome of the assessment. A finding of mental incompetency could mean that somebody will have to get legal authority to make decisions for the person. When this happens, the assessment may be presented as evidence in court. The court would use this information to help it decide what kinds of decisions the person responsible for making personal care decision (i.e. the Attorney for Personal Care or a Committee of the Person) can or cannot make on behalf of the other person.
How do you terminate a Power of Attorney for Personal Care?
A Power of Attorney can be terminated at any time while the person making it is legally fit or competent to do so. Under the Infirm Persons Act, a Power of Attorney for Personal Care can be terminated when:
- it is revoked in writing and signed in front of an appropriate witness who is present (and it should also refer to the Power of Attorney that is being revoked or parts therein);
- the Attorney dies, resigns, or becomes incapable of personal care unless another Attorney (joint or substitute) is provided for in the Power of Attorney;
- the court appoints a Committee of the Person for the Principal;
- the Principal dies; or
- the Principal executes a new Power of Attorney (unless multiple Powers of Attorney are provided for).