New Brunswick Health Care Directive vs Power of Attorney: Which Document Does What

The Confusion That Costs Families Months

A parent hands you a folded document from their bedside drawer. "It's all taken care of," they say. You unfold it and see the words "Advance Health Care Directive" across the top. You assume someone is now authorized to make medical decisions when the time comes.

That assumption is wrong under current New Brunswick law, and it's one of the most consequential misunderstandings in provincial eldercare planning.

What Changed in 2020

Before July 1, 2020, New Brunswick's Advance Health Care Directives Act allowed two things in a single document: writing out your treatment preferences (like resuscitation limits or comfort-care-only instructions) and appointing a health proxy to enforce those wishes.

The Enduring Powers of Attorney Act repealed that dual function. Under current law, a health care directive is solely an instructional document. It records your parent's values, treatment preferences, and end-of-life wishes. It cannot appoint anyone to make decisions.

To actually name a person with legal authority over healthcare decisions — the person who can consent to surgery, refuse a treatment, or authorize a care home placement — your parent must execute a separate enduring power of attorney (EPA) for personal care.

What Each Document Actually Does

Health care directive: A written statement of treatment preferences. It tells doctors what your parent wants — not who makes the call. It takes effect when two healthcare professionals determine your parent lacks capacity to make the specific decision in question. No one is "appointed." The directive simply instructs the care team.

EPA for personal care: A legal instrument that names a specific person (the "attorney for personal care") with the authority to make healthcare, dietary, housing, and daily living decisions when your parent can no longer make them. This is the document hospitals, care facilities, and doctors look for when they need someone to consent on a patient's behalf.

The critical point: if there is a conflict between a health care directive's written instructions and the attorney for personal care's decision, the attorney's decision takes precedence. The attorney is bound to act consistently with your parent's known wishes, but they have the legal authority to adapt to circumstances the directive didn't anticipate.

Why Both Documents Matter

A health care directive without an EPA for personal care leaves your parent's wishes floating without anyone legally empowered to enforce them. Medical teams will try to follow the directive, but when a decision falls outside what the directive addresses — which specific care home to move to, whether to try an experimental treatment, what level of palliative sedation to authorize — there is no legally designated person to decide.

An EPA for personal care without a health care directive leaves the attorney making decisions without a clear record of your parent's values. The attorney has authority but limited guidance on what your parent would have wanted in specific clinical scenarios.

Both documents together create a complete framework: the directive records your parent's wishes, and the EPA ensures someone is legally authorized to carry them out and handle situations the directive didn't foresee.

How to Execute Each Document

Health care directive: No specific execution requirements are prescribed by statute beyond it being a written document. However, dating and signing it in front of witnesses strengthens its validity. Keep copies with your parent's primary care physician, in a visible place at home, and with the person most likely to be present during a medical emergency.

EPA for personal care: Must be signed by your parent in the presence of either a practising New Brunswick lawyer or two adult witnesses who are at least 19 years old and are not the appointed attorney, the attorney's spouse, or the attorney's child. A lawyer is not legally required for personal care EPAs, but is highly recommended — especially if your parent also needs a property EPA (which does require a lawyer).

What About Old Documents?

If your parent signed an advance health care directive before July 2020 that includes a proxy appointment, the instructional portions (treatment preferences) remain valid. But the proxy appointment itself — the part naming someone to make decisions — is no longer legally operative. Your parent needs a new EPA for personal care to designate a substitute decision-maker.

If your parent lacks the capacity to sign new documents now, the court pathway under the Supported Decision-Making and Representation Act is the alternative. That involves a formal application to the Court of King's Bench — a process that takes weeks to months, not days.

The New Brunswick Power of Attorney & Personal Directive Kit includes both document frameworks with preparation worksheets, so your parent can work through their treatment preferences and their attorney appointment in a single organized session before visiting a lawyer.

See more New Brunswick guides →