New Brunswick Power of Attorney for Personal Care

New Brunswick POA 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:

If you’d like to know more about Powers of Attorney for Personal Care in New Brunswick …keep reading…

Caveat: the following is not legal advice and is provided for educational purposes only.  If you need legal assistance, seek professional legal help.

What is a Power of Attorney for Personal Care?

In New Brunswick, a “Power of Attorney for Personal Care” is a legal document that designates a person (known as an “Attorney”) to act on behalf of another person (called a “Principal”) to make personal care decisions on the Principal’s behalf.  Personal care typically includes things like health care, nutrition, shelter, clothing, hygiene, and safety.  It is important to note that a Power of Attorney for Personal Care need not deal with all aspects of personal care, but only some.  Furthermore, if a Principal is capable (as discussed in greater detail below) of making certain decisions about their personal care, then the Power of Attorney will not be triggered with respect to those decisions – but it may still be triggered with respect to other decisions.  The word “Attorney” does not mean that the person is or becomes a lawyer.  They are simply the person appointed as such and nothing more.  Powers of Attorney for Personal Care are governed by the Infirm Persons Act, R.S.N.B. 1973, c. I-8, s.40.

Why do you need a Power of Attorney for Personal Care?

The most common reason to have a Power of Attorney for Personal Care is to ensure that someone you trust is able to look after your personal care when you are no longer able to make personal care decisions for yourself.  You can also specify which personal care matters your Attorney will be able to make decisions about.

What if I don’t have a Power of Attorney for Personal Care?

If you do not have a Power of Attorney for Personal Care, decisions about your personal care will not automatically be transferred to family members (a common misconception).  Rather, someone must apply to the court for permission to be the “Committee of your Person”.  Applications for court-appointed committees of the person are made under the Infirm Persons Act.  The person applying must file a Notice of Application with the court.  Sworn statements in writing from at least one medical practitioner and from someone who knows the person must accompany the notice. The medical practitioner must give reasons why he or she believes the person is mentally incompetent. Normally the person named in the Notice must receive a copy of the Application. If the court believes that the person lacks the mental capacity to understand it, or that it would aggravate his or her condition, it may waive this requirement.

Under the law a spouse, a relative or in-law can apply to become the Committee of the Estate and/or Person on behalf of a mentally incompetent person. If there is no relative, a friend or even a creditor can apply. A Public Trustee may also be appointed to ensure that a person’s wishes are respected.

If a person has no family members or friends who are able to apply to be appointed as a Committee, a Public Trustee may be appointed. Public Trustee services are administered by the New Brunswick Legal Aid Services Commission. The Public Trustee may act as a Committee of the Estate and/or Person to make decisions about finances or property and/or to make decisions about personal care. Any individual can make a referral in writing to the Public Trustee by completing an Application for Services – Adult Services.

The court decides if someone is mentally incompetent and therefore needs a Committee of the Person by looking at the evidence. To make a decision at the first hearing, the applicant must show that a person is mentally incompetent beyond a reasonable doubt.  This is a high standard of proof. If the evidence is sufficient, the court will declare the person mentally incompetent.  However, if the evidence does not show this, the court may set a time and place for another hearing. If necessary, the court will ask for more medical information. The court may order the person to take a medical examination. Generally, the court will only order an examination if there is existing medical proof of the person’s mental incompetence. A person has the right to appeal any decision the court makes.

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