Alternatives to the Public Trustee for a New Brunswick Incapacitated Parent

If your parent has lost mental capacity with no power of attorney in place, the Public Trustee may become involved — but it is not the only route. New Brunswick's Supported Decision-Making and Representation Act (SDMRA), in effect since January 1, 2024, provides three tiers of alternatives — from a voluntary assistant, through supported decision-making, to court-ordered representation — that can preserve family involvement when the statutory requirements are met.

The Public Trustee exists as a last resort for situations where no family member is willing, able, or suitable to act. If your family wants to stay involved, you have options: the supported decision-making and representation tiers require action through the Court of King's Bench, while the first tier is a voluntary, non-court authorization. The longer you wait, the more likely the Public Trustee becomes the path of least resistance for the system.

The Three SDMRA Alternatives

The SDMRA replaced the old Infirm Persons Act with a human-rights-focused framework that recognizes three levels of capacity, not just "capable" or "incapable." The first level is a voluntary authorization; the latter two use court orders:

Tier 1: Decision-Making Assistance Authorization

For parents who can still make decisions but need help understanding options and communicating choices.

This is the lightest intervention. Your parent formally appoints an assistant — typically a family member — to help gather information, explain complex choices, and communicate decisions to third parties like banks, medical providers, and government agencies. The key distinction: the assistant does not make decisions for your parent. The choices remain legally your parent's.

• Court involvement: None for the voluntary authorization — it must be reviewed and signed in the presence of a practising member of the Law Society of New Brunswick
• Best for: Early-stage cognitive decline where your parent understands they need help but can still participate in decisions
• Cost: Lowest of the three tiers — legal fees may apply if you need help drafting the agreement
• Ongoing duties: Keep required records, act only within the authorization, and do not make decisions on the person's behalf

Tier 2: Supported Decision-Making Order

For parents who can no longer make independent decisions but can make them collaboratively with a trusted person.

This is a court-ordered arrangement where the court appoints a supporter to work interdependently with your parent. The supporter helps interpret options, understand consequences, and express preferences — but the decision-making is shared, not unilateral. This tier requires a formal Capacity Assessment Report (Form 3) completed by an authorized assessor, such as a registered medical practitioner, nurse practitioner, or psychologist.

• Court involvement: Full court application to the Court of King's Bench
• Best for: Moderate cognitive decline where your parent can still express wishes and preferences but can't navigate complex decisions alone
• Cost: $2,500-$7,500+ in legal and court costs, plus any capacity-assessment fee
• Ongoing duties: Act in accordance with the person's expressed wishes, keep detailed records, report to the court as required

Tier 3: Representation Order

For parents who have completely lost capacity and cannot participate in decision-making even with support.

This is the closest equivalent to full guardianship under the old system. The court appoints a representative — which can be a family member, a trust company, or, as the fallback, the Public Trustee — to make personal care and/or financial decisions in the person's best interest. This is the tier where the Public Trustee typically enters the picture, but only if no suitable, willing, and able family member or friend is available.

• Court involvement: Full court application with the most extensive evidence requirements
• Best for: Advanced dementia or severe cognitive impairment where the parent cannot express meaningful preferences
• Cost: $2,500-$7,500+ in legal and court costs, plus any capacity-assessment fee
• Ongoing duties: Act in the person's best interest (not just wishes), maintain separate financial records, provide accountings to the court, manage property with fiduciary care

Quick Comparison

Why the Public Trustee Is the Default You Want to Avoid

The Public Trustee is not a bad actor — it's a necessary government function for vulnerable adults who have no one else. But for families who are willing and able to manage their parent's affairs, it creates several problems:

Loss of family control. The Public Trustee makes decisions based on institutional policy and best-interest standards, not your family's values, preferences, or knowledge of your parent's wishes. Your parent wanted to stay in the family home as long as possible? The Public Trustee may decide a nursing home is in their best financial interest.

Fees against the estate. The Public Trustee charges fees for management services — deducted from your parent's estate. A family member acting as representative avoids the Public Trustee's management-fee structure, but any compensation or expenses should be addressed through the court.

Replacing the Public Trustee requires a court application. Once the Public Trustee is appointed, swapping to a family member isn't automatic. You need to apply to the Court of King's Bench to replace the representative, which means more legal fees and more delay — on top of whatever the Public Trustee has already been paid.

Slow response times. The Public Trustee's office manages many clients simultaneously. Decisions that a family member could make in a day — releasing funds for an urgent home repair, approving a change in care arrangements — may take weeks through the Public Trustee's review process.

How to Keep Your Family in Control

The critical step is filing a family representation application before the Public Trustee becomes involved. Here's the typical sequence:

Step 1: Get the capacity assessment. An authorized assessor — such as a registered medical practitioner, nurse practitioner, or psychologist — completes the Form 3 Capacity Assessment Report. This document informs which SDMRA tier is appropriate and is required for a court application. The assessment fee varies by assessor.

Step 2: Determine the right tier. If your parent can still participate with help, Tier 2 (Supported Decision-Making Order) preserves more of their autonomy. If they can't participate at all, Tier 3 (Representation Order) is necessary. The capacity assessment informs this decision.

Step 3: File the court application. Working with an elder law lawyer, file the application with the Court of King's Bench. The application names the proposed family representative, includes the capacity assessment, and explains why the proposed arrangement is in the person's best interest.

Step 4: Attend the hearing. The court reviews the application, considers any objections, and makes the order. If no one contests the application and the capacity assessment supports the requested tier, this is often straightforward.

Step 5: Begin acting under the order. The representative's authority begins when the court makes the order. Immediately register at banks and financial institutions with the court order, begin maintaining separate financial records, and establish the reporting system the court requires.

Who This Is For

• Families where a parent has lost capacity with no POA in place and a hospital, care facility, or social worker has mentioned the Public Trustee
• Adult children who want to apply for a representation order or supported decision-making order before the Public Trustee becomes involved
• Families who have been told the Public Trustee will be handling their parent's affairs and want to understand the process for replacing that appointment with a family member
• Caregivers who need to understand the SDMRA framework quickly because a capacity crisis has already happened

Who This Is NOT For

• Families where the parent still has capacity — execute a property EPA and personal care EPA now, while you can (the process is simpler, faster, and dramatically cheaper than any SDMRA pathway)
• Situations where no family member is willing or able to serve as representative — the Public Trustee exists for exactly this reason
• Family situations with active elder abuse concerns — the court may determine the Public Trustee is safer than a family member, and for good reason

Tradeoffs

Family representation preserves control but comes with duties. A family member appointed under the SDMRA has legal obligations: maintaining separate accounts, keeping records, reporting to the court, and acting in the person's best interest (Tier 3) or in accordance with their expressed wishes (Tier 2). These duties are real, and failure to meet them can result in the court removing the representative and appointing the Public Trustee anyway.

The SDMRA is newer and less tested. The Act took effect January 1, 2024, replacing a much older framework. Court interpretations are still developing, and lawyers are building expertise in the new tiers. Straightforward cases are generally well-handled, but novel or contested situations may have unpredictable outcomes.

Speed matters more than perfection. A family application that's filed promptly is better than a perfect application that arrives after the Public Trustee has already been appointed. The court can modify an order later — but displacing an existing Public Trustee appointment is harder than establishing a family appointment first.

The New Brunswick Power of Attorney & Personal Directive Kit covers the complete SDMRA three-tier framework, the capacity assessment process, the Public Trustee referral chain, and includes a court application document checklist for families preparing to file. It's designed for exactly the situation where standard POA documents are no longer an option and the SDMRA court pathway is the route to seek family control.

Frequently Asked Questions

How long does a family member have to apply before the Public Trustee is appointed?

There's no fixed deadline, but the trigger is practical: when an incapacitated adult has no legal representative and needs one for care or financial decisions, the family may need to act promptly. The Public Trustee is a last-resort option when no suitable, willing, and able family member or friend is available. The faster your family files a court application, the stronger your position.

Can a family member replace the Public Trustee after appointment?

Yes, but it requires a court application. You need to demonstrate that a family member is suitable and that the change serves the person's best interest. This adds another layer of legal fees and delay on top of the original problem. Applying before the Public Trustee is appointed is significantly easier than replacing them afterward.

What if siblings disagree about who should be the representative?

The court considers the person's best interest and, where possible, their expressed wishes. If siblings can't agree, the court may appoint the person it deems most suitable, ask for mediation, or in contentious cases appoint the Public Trustee as a neutral party. Resolving the disagreement before filing — even imperfectly — is better than letting the court decide.

Does a Tier 2 supported decision-making order cost less than a Tier 3 representation order?

Generally yes. Tier 2 orders involve a collaborative arrangement, while Tier 3 grants a representative decision-making authority. Research estimates the SDMRA court pathway at $2,500-$7,500+ in legal and court costs, plus any capacity-assessment fee; the actual amount depends on the application.

What duties does a family representative have under the SDMRA?

A Tier 3 representative must act in the person's best interest and maintain the records and accountings required by the court. A Tier 2 supporter works with the person and is guided by their expressed wishes and preferences; the order sets the practical scope of the arrangement. Failure to meet the applicable duties can result in removal by the court.

Can the Public Trustee charge fees against my parent's estate?

Yes. The Public Trustee charges management fees that are deducted from the incapacitated person's estate. The fee structure varies based on the complexity of the estate and the services provided. A family member acting as representative avoids that Public Trustee management-fee structure, but any compensation or expenses should be addressed through the court. This fee difference is one of the strongest financial arguments for a family application.

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