New Brunswick Substitute Decision Maker for Health Care: Who Decides When Your Parent Can't

The Phone Call Nobody Prepares For

Your parent is in the hospital after a fall. The doctor needs consent for surgery, but your parent is sedated and cannot communicate. The nurse turns to you and asks: "Are you the substitute decision-maker?"

If you don't have documentation proving legal authority, the answer the hospital needs is more complicated than "I'm the daughter."

The Hierarchy of Decision-Making Authority

New Brunswick does not have a single "medical power of attorney" form. Instead, the province uses a layered system that determines who makes healthcare decisions for someone who has lost capacity.

Tier 1 — EPA for personal care. If your parent signed an enduring power of attorney for personal care under the Enduring Powers of Attorney Act, the person named as attorney has first priority. This is the strongest form of authority: the attorney can consent to treatment, refuse treatment, choose a care facility, and make day-to-day decisions about diet, housing, and personal care. The EPA is strictly springing and is activated only after a formal capacity assessment determines that your parent lacks capacity for the specific decisions in question.

Tier 2 — Court-appointed representative. If your parent did not sign an EPA and has already lost capacity, the Court of King's Bench can appoint a representative under the Supported Decision-Making and Representation Act. A Level 3 representation order gives the appointed person full substitute decision-making authority. This requires a formal application, a capacity assessment report (Form 3), and typically takes 6 to 12 weeks for uncontested applications.

Tier 3 — Next-of-kin consensus (common-law practice). When there is no EPA and no court order, healthcare professionals rely on the common-law practice of seeking consensus from the closest available family members. There is no statutory hierarchy for general medical consent in New Brunswick (unlike Ontario's Health Care Consent Act, which prescribes a ranked list). This is institutional practice, not a legal right, and it does not give family members authority over finances or residential placement.

Emergency exception. In a genuine emergency where treatment is immediately necessary to save life or preserve health, healthcare professionals can proceed without consent from anyone if delay in seeking consent would put your parent at greater risk.

The "Health Care Proxy" Confusion

You may hear the term "health care proxy" in conversation or see it on older documents. Under current New Brunswick law, this term has no statutory standing. The Advance Health Care Directives Act (which allowed proxy appointments) was repealed on July 1, 2020. Any proxy appointment made under that old legislation is no longer operative.

If your parent needs someone legally designated to make health decisions, the instrument is an EPA for personal care — not a directive, not a proxy form, not a hospital's own "designate" paperwork.

What Happens in a Psychiatric Setting

The Mental Health Act creates its own consent framework for psychiatric treatment specifically. When a patient in a psychiatric facility cannot consent to routine clinical treatment, the Act provides a statutory hierarchy of substitute decision-makers:

1. Spouse or common-law partner
2. Adult child
3. Parent

This hierarchy applies only to treatment decisions within psychiatric care. It does not override an EPA for personal care if one exists, and it does not extend to general medical decisions outside the psychiatric setting.

The Standard a Decision-Maker Must Meet

Whatever tier applies, the substitute decision-maker operates under the same legal standard: they must act in the parent's best interest and in accordance with any known wishes or values. Consent to treatment must be informed (the medical team must explain the risks and alternatives), voluntary, and specific to the procedure in question.

An attorney for personal care who disagrees with the medical team's recommendation can refuse treatment on the patient's behalf. If your parent has a written health care directive stating "no resuscitation," the attorney's decision supersedes the directive in a conflict, but the attorney remains legally bound to act in accordance with the parent's known wishes and beliefs.

Practical Gaps Families Hit

The hospital wants paperwork you don't have. Even when next-of-kin consensus applies, the hospital's risk management team may delay non-emergency procedures until they see a formal document. An EPA eliminates this friction entirely.

Siblings disagree on treatment. Without an EPA naming a single decision-maker, the hospital faces conflicting instructions from multiple family members. In contested situations, the hospital may require formal legal authority before proceeding — adding delay and expense.

The bank won't talk to the person making care decisions. An attorney for personal care has no authority over finances. If your parent's care requires accessing bank accounts to pay facility deposits or arrange private-pay services, a separate EPA for property is needed.

The New Brunswick Power of Attorney & Personal Directive Kit helps families establish both forms of legal authority in a single organized process — so the person making healthcare decisions and the person managing finances are clearly designated before a crisis forces the question.

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