New Brunswick Capacity Assessment for Power of Attorney: Process, Form 3, and What to Expect

When the Question Becomes "Can Mom Still Decide?"

Your parent has been forgetting to pay bills. They gave their banking information to a phone scammer last month. Their doctor is concerned, and so are you. But concern is not a legal determination — and in New Brunswick, the difference between "I think Mom can't manage" and "a qualified professional has formally assessed Mom's decision-making capacity" determines whether a power of attorney activates, whether a court will appoint a representative, and whether anyone has legal standing to intervene.

What Capacity Means Under New Brunswick Law

Capacity is not a yes-or-no binary. Under the Enduring Powers of Attorney Act and the Supported Decision-Making and Representation Act (SDMRA), the legal test for capacity is decision-specific: can the person understand the information relevant to a particular decision, and can they appreciate the reasonably foreseeable consequences of making or failing to make that decision?

This means your parent might be assessed as capable of deciding where to eat dinner but incapable of managing a real estate transaction. A capacity assessment evaluates specific functional domains, not a global "competent or incompetent" label.

Who Can Conduct a Capacity Assessment

Under SDMRA Regulation 2023-66, an authorized capacity assessor must be one of:

• A registered medical practitioner (family doctor or specialist)
• A nurse practitioner
• A registered psychologist

The assessor must conduct an in-person evaluation, rule out temporary or reversible conditions that might impair capacity (medication side effects, delirium, untreated infections, depression), and document their findings on the Capacity Assessment Report (Form 3) prescribed by the regulation.

Your parent's family doctor is often the logical starting point. They have baseline knowledge of your parent's cognitive function and can identify whether recent changes represent a new decline or a longstanding pattern. If the family doctor is unwilling to conduct the assessment (some are), ask for a referral to a geriatrician or neuropsychologist.

The Form 3 Capacity Assessment Report

Form 3 is the standardized document that the SDMRA requires for any court application involving decision-making authority. It is filed with the Court of King's Bench as part of a Level 2 (Supported Decision-Making Order) or Level 3 (Representation Order) application.

The assessor must address:

• The person's current cognitive and functional status
• Whether the impairment is temporary or permanent
• Whether reversible causes have been investigated and ruled out
• The specific decision-making domains affected (financial, personal care, healthcare)
• A clinical opinion on whether the person can make or participate in the relevant decisions

Form 3 is published in SDMRA Regulation 2023-66, available through the Government of New Brunswick's legislative documents.

How Capacity Assessment Connects to Springing POAs

If your parent signed a "springing" enduring power of attorney — one that only activates when capacity is lost — the activation mechanism depends on what the document specifies.

For a property EPA that names a designated person (which could be the attorney themselves, another family member, or a specific doctor), that person makes the determination that capacity has been lost. This does not require the formal Form 3 used for a court application, but the designated person should document their determination in writing.

If a property EPA does not name a designated person, or if the named person is unwilling or unable to act, an authorized capacity assessor must complete a formal assessment before the attorney's powers activate.

For an EPA for Personal Care, activation is strictly springing and requires a formal capacity assessment showing that your parent lacks capacity to make the specific decisions in question.

When an assessment is required, it must be specific to the decisions covered by the EPA. A property EPA requires evidence that your parent cannot manage financial matters. A personal care EPA requires evidence that your parent cannot make healthcare and daily living decisions. One assessment can cover both if the assessor addresses both domains.

What the Assessment Appointment Looks Like

The length of the assessment depends on the person's situation and the assessor's process. Common elements include:

• Questions about the current date, location, and recent events (orientation)
• A review of financial management ability — can the person describe their income sources, understand a bank statement, or explain what a mortgage payment covers?
• Discussion of healthcare decisions — can the person describe their medications, understand treatment options being presented, or articulate why they might choose one option over another?
• Evaluation of vulnerability — is the person susceptible to undue influence from family members, caregivers, or strangers?

The assessor will also review medical records and may request additional testing (cognitive screening tools like the MoCA or MMSE are common).

Cost and Timeline

Fees vary by assessor and by whether additional report-writing or specialist work is required. Ask what the assessment and any written report will cost before booking it.

Timelines vary by assessor. Ask when the appointment and completed Form 3 will be available; a specialist referral may add scheduling and report-writing time.

If your parent is currently hospitalized, ask the attending team whether an authorized assessor is available and what documentation they can provide.

What Happens After the Assessment

If the assessment confirms lost capacity and your parent has a springing EPA, the attorney can begin acting immediately — bring the EPA and the assessment documentation to the bank, care facility, or government office that needs to see it.

If there is no EPA and the assessment confirms lost capacity, the Form 3 report becomes the cornerstone of a court application under the SDMRA. You file with the Court of King's Bench, serve the application on family members, and wait for the 20-day response period before the judge reviews the case.

The New Brunswick Power of Attorney & Personal Directive Kit includes a capacity assessment preparation guide that helps families document day-to-day observations of cognitive decline — the kind of detailed, dated notes that make the assessor's job faster and the resulting report more thorough.

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