Duties of an Attorney Under Power of Attorney in New Brunswick

You Have the Authority. Now What?

Your parent signed an enduring power of attorney naming you as their attorney for property, personal care, or both. The document is drafted and witnessed. You are now legally authorized to act on their behalf.

But authorization is not a blank check. New Brunswick law imposes specific duties on anyone acting under a power of attorney. Failing to meet them can bring scrutiny, and a monitor can apply to the Court of King's Bench to terminate or alter the power if they suspect financial abuse or neglect.

The Core Obligation: Act in Your Parent's Best Interest

Every decision you make as attorney must serve your parent's interests — not yours, not other family members', and not what would be most convenient. This is a fiduciary duty, the highest standard of care that law imposes on any relationship.

In practical terms:

• You cannot use your parent's money to benefit yourself, even if you believe your parent would approve
• You cannot make gifts from your parent's assets to yourself or others unless the EPA specifically authorizes it
• You must keep your parent's property and finances completely separate from your own
• Investment decisions must be conservative and appropriate for your parent's situation, not speculative

Property Attorney: What You Can and Cannot Do

An attorney for property manages all financial, legal, and real estate matters on behalf of the grantor. This typically includes:

• Paying bills and managing bank accounts
• Filing taxes
• Managing investments and registered accounts (RRSPs, RRIFs, TFSAs)
• Collecting pension income (CPP, OAS, GIS, private pensions)
• Managing real estate — paying property taxes, arranging maintenance, collecting rent
• Dealing with insurance companies

What you cannot do without specific authorization:

• Change beneficiary designations. Under Section 7(3) of the Enduring Powers of Attorney Act, you can maintain existing beneficiary designations when converting financial instruments (like rolling an RRSP into a RRIF with the same beneficiary). But you cannot change a beneficiary to name someone different unless the EPA explicitly grants that power or a court authorizes it.
• Make gifts. Unless the EPA document specifically permits gifts, you have no authority to give away your parent's assets — even small birthday gifts to grandchildren. Some EPAs include a clause permitting modest gifts consistent with the grantor's established pattern.
• Sell the family home. While you technically have authority over property transactions, selling a family residence is significant enough that most lawyers recommend the EPA include explicit language about real estate sales.

Personal Care Attorney: What You Can and Cannot Do

An attorney for personal care makes decisions about healthcare, diet, clothing, accommodation, safety, and overall well-being. This includes:

• Consenting to or refusing medical treatment
• Choosing where your parent lives — whether that's their own home, a special care home, or a nursing home
• Making decisions about daily routines, visitors, and personal activities
• Communicating with healthcare providers on your parent's behalf

Your decisions must align with your parent's known wishes and values. If your parent has a written health care directive expressing specific treatment preferences, your decision as attorney supersedes the directive in a conflict, but you remain legally bound to act in accordance with your parent's known wishes and beliefs.

You cannot override your parent's current wishes while they retain capacity for a specific decision. An EPA for personal care is "springing" — it only activates when a formal capacity assessment determines your parent cannot make the decision in question. If your parent is assessed as capable of choosing their own doctor but incapable of managing medication schedules, your authority only extends to the medication decisions.

Record Keeping

New Brunswick law requires attorneys to keep records prescribed by regulation, and the fiduciary standard requires detailed documentation of every decision and transaction. If your authority is ever challenged — by a sibling, by a monitor, or by a court — you need to demonstrate that every dollar was spent in your parent's interest.

Maintain:

• A transaction ledger showing every withdrawal, payment, and transfer from your parent's accounts, with receipts
• Bank statements organized by month
• A decision journal for significant personal care choices — which care facility and why, which treatment option and what the alternatives were
• Correspondence with banks, government agencies, healthcare providers, and legal professionals

If the EPA names a monitor — a person appointed to oversee the attorney's actions — the monitor has the legal authority to request and review your records. The monitor can also apply to the Court of King's Bench for an order terminating your authority if they suspect financial abuse or neglect.

When Multiple Attorneys Are Appointed

If your parent named multiple attorneys for property without specifying a decision-making structure, all decisions must be made by unanimous agreement. One attorney cannot act alone.

If different people are named as attorney for property and attorney for personal care, both have a statutory duty to consult with each other on decisions that overlap. When a decision impacts both personal care and finances — like choosing between a subsidized nursing home and a more expensive private special care home — the personal care attorney's decision takes precedence, unless the EPA states otherwise.

The Line Between Attorney and Family Member

One of the hardest adjustments is separating your role as attorney from your role as daughter, son, or sibling. As a family member, you might believe your parent should sell their house and move to a care facility. As an attorney, you can only make that decision if your parent has lost the capacity to decide for themselves and the move is in their best interest.

As a family member, you might want to distribute some of your parent's savings to siblings who are struggling financially. As an attorney, that distribution is a breach of fiduciary duty unless the EPA explicitly permits it.

The New Brunswick Power of Attorney & Personal Directive Kit includes a property management ledger template and a personal care decision journal — practical tools designed for the actual recordkeeping an attorney needs to do, organized by the categories that courts and monitors look for.

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