New Brunswick Supported Decision Making Act (SDMRA): What Families Need to Know

On January 1, 2024, New Brunswick replaced the outdated Infirm Persons Act with the Supported Decision-Making and Representation Act (SDMRA). If your family is navigating elder care and needs legal authority over a parent's affairs, this law changes the framework entirely — and it is designed to preserve your parent's autonomy far more than the old system did.

The Core Principle

The SDMRA starts from a presumption: every adult has decision-making capacity until proven otherwise. The old Infirm Persons Act treated guardianship as an all-or-nothing proposition — either the person was competent, or a guardian took over. The SDMRA introduces graduated levels of assistance that match the degree of support the person actually needs.

Three Tiers of Legal Support

Tier 1 — Decision-Making Assistant. The adult (your parent) directly appoints someone to help gather information, explain options, and communicate their choices. The assistant cannot make decisions on the parent's behalf — they support the decision-making process while the parent retains full authority. No court application is required; the parent executes a Decision-Making Assistance Authorization Form while they still have capacity.

Tier 2 — Decision-Making Supporter (Court Order). When a parent cannot make decisions entirely independently but can still participate in the process, the Court of King's Bench can appoint a supporter under a Supported Decision-Making Order. The supporter works collaboratively with the parent to interpret their wishes and help reach decisions. The parent's preferences and values guide every decision.

Tier 3 — Representative (Court Order). When a parent lacks the capacity to participate in decisions even with support, the court can appoint a representative under a Representation Order. The representative makes decisions on the parent's behalf, guided by the parent's known wishes, values, and best interests. This is the closest equivalent to the old guardianship model.

When Court Is Required

Tiers 2 and 3 require a formal application to the Court of King's Bench (Family Division) under Rule 71.1 of the Rules of Court. The application must include a completed Capacity Assessment Report from a qualified physician, nurse practitioner, or psychologist, a financial summary of the parent's affairs, and the specific decisions or areas of life the order should cover.

The applicant must serve the Notice of Application (Form 71.1A) and a blank Response (Form 71.1B) on the parent, their caregiver, their spouse or partner, and all adult children or siblings. Any party can file a response within 20 days to object.

If no one responds, a judge may grant the order without a hearing. If the parent or any family member objects, a formal hearing is required — which adds time and cost.

What This Means for Elder Care

For families navigating the care system, the SDMRA matters because it determines who can legally make decisions about the parent's care placement, medical treatment, and financial affairs. If a parent has mild cognitive decline, Tier 1 (no court, parent retains authority) may be sufficient. If dementia has progressed significantly, the family may need a Tier 3 Representation Order before a nursing home will accept the parent or a bank will recognize the family's authority.

The SDMRA also repealed the old Advance Health Care Directives Act. All legal powers of attorney are now consolidated under the Enduring Powers of Attorney Act — health care directives are incorporated into the EPA for Personal Care rather than existing as a separate legal instrument.

How Regulation 85-187 Interacts

Nursing home placement in New Brunswick operates under Regulation 85-187, which governs waitlist management, the 100-kilometre interim placement rule, and the two-refusal policy. When a parent lacks capacity and a Representative has been appointed under the SDMRA, the Representative makes placement decisions — including which preferred homes to select and whether to accept an interim placement offer.

Without a Representative or EPA in place, the Department of Social Development may need to involve the Public Trustee, which adds bureaucratic delay at the worst possible time.

Elder Law Lawyer Costs

Executing an EPA while the parent has capacity is far cheaper than a court application after they lose it. A straightforward Property EPA typically costs $300 to $500 in lawyer fees in New Brunswick. A Personal Care EPA can be done without a lawyer if proper witnesses are used.

A contested Representation Order application, by contrast, can cost $3,000 to $10,000 or more in legal fees — and that does not include the Capacity Assessment Report, which must be completed by a qualified medical professional.

Elder-law lawyers in Moncton, Fredericton, and Saint John typically charge $300 to $500 per hour for estate and disability planning consultations. For families who already understand the SDMRA framework and have prepared their documentation, the billable hours required can be significantly reduced.

The New Brunswick Care Decision Guide includes a legal authority checklist, an EPA preparation worksheet, and a plain-language breakdown of the SDMRA tiers to help families determine which level of legal support applies to their situation — before spending on lawyer consultations.

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