Parent Lost Capacity With No Power of Attorney in New Brunswick

The Worst-Case Scenario Is Also the Most Common One

Your parent had a stroke last week. They cannot speak, cannot manage their bank accounts, and cannot consent to the rehabilitation facility the hospital wants to discharge them to. They never signed a power of attorney.

You are not automatically authorized to do anything. Not as the eldest child, not as the person who lives closest, not as the person listed on their emergency contact card. In New Brunswick, family relationship alone does not confer legal authority over another adult's decisions.

Here is what you are actually facing.

The Court Pathway Under the SDMRA

Since January 1, 2024, the Supported Decision-Making and Representation Act (SDMRA) governs what happens when a New Brunswick adult loses capacity without having executed an enduring power of attorney. The old Infirm Persons Act — which used the language of "mental incompetency" and appointed "committees" — has been repealed and replaced with a rights-based framework.

The SDMRA offers three tiers, but when a parent has fully lost capacity, the relevant pathway is a Level 3 Representation Order: the court appoints a representative to make financial and/or personal care decisions on the parent's behalf.

What You Need to File

The application goes to the Family Division of the Court of King's Bench in the judicial district where your parent lives. You will need:

A Notice of Application (Form 71.1A). This is the formal petition asking the court to appoint you (or someone else) as your parent's representative.

A personal affidavit. You must detail your parent's current living situation, your relationship with them, what decisions need to be made, and why less restrictive options (like a Level 1 assistance authorization or a Level 2 supported decision-making order) are insufficient.

A Capacity Assessment Report (Form 3). This is the critical piece. A registered medical practitioner, nurse practitioner, or psychologist must conduct a formal cognitive and functional assessment. The assessor must rule out temporary or reversible conditions (medication side effects, delirium, untreated depression) and provide a clinical opinion on your parent's ability to understand information relevant to decisions and appreciate the consequences of making or failing to make them.

A financial summary. If you are seeking authority over your parent's finances, you must submit a sworn statement detailing their assets, income, and liabilities.

Who Gets Notified

You must serve the application on your parent (in person), their spouse or common-law partner, their parents (if living), and all children and siblings over 19. The parent must be served personally — a copy left with them and with the person in whose care they currently reside.

Any served party has 20 days to file a Response (Form 71.1B) opposing the application. If someone objects, the court schedules a formal hearing. If no one responds, the judge can grant the order in chambers without a hearing.

Realistic Timeline and Costs

For an uncontested application where no family member objects, expect 6 to 12 weeks from filing to receiving the court order. If contested — particularly in blended families or where siblings disagree — a formal hearing is required and the process may extend into months.

Costs for the court pathway typically run between $2,500 and $7,500+ in combined legal fees, filing fees, and the capacity assessment. That is the cost of not having a $300–$1,000+ EPA drafted while your parent still had capacity.

What You Cannot Do While Waiting

During the weeks or months between your parent losing capacity and the court issuing a representation order, you are in a legal grey zone:

• Bank access is blocked without documented authority. You cannot act as your parent's attorney to pay bills, manage their mortgage, or access their savings — even with their bank card and PIN.
• Care facilities may require documented admission authority. The hospital may need to discharge your parent, but a nursing home or special care home may require consent from the patient or their legal representative before completing admission.
• You cannot sell or manage property. If your parent's house needs to be sold to fund care, or if property taxes and maintenance need to be handled, you have no authority to act.
• Government agencies may require documented authority. CRA, Service Canada (for CPP/OAS/GIS), and provincial departments may require either the person themselves or someone with documented legal authority.

The Emergency Gap

New Brunswick has no fast-track "emergency guardianship" procedure. If your parent is in crisis — in a hospital bed, unable to make decisions, with bills piling up — the ordinary court pathway is measured in weeks, not days.

For immediate medical decisions, the emergency exception applies: healthcare professionals can treat without consent when treatment is immediately necessary to save life or preserve health and delay in seeking consent would put your parent at greater risk. For non-emergency medical decisions, hospitals fall back on next-of-kin consensus — but that is institutional practice, not a legal right, and it does not extend to financial matters or residential placement.

The hospital social worker can help coordinate a temporary care plan while your court application is pending. They can also connect you with Legal Aid Services if you qualify for assistance with the application costs.

The Public Trustee as Last Resort

If no family member is willing or able to serve as representative, the Public Trustee (operating under the New Brunswick Legal Aid Services Commission) can be appointed by the court. This is genuinely a last-resort option — the Public Trustee will only consent to act when no other suitable person is available. The approval process can take several additional weeks or months, and fees for the Public Trustee's management services are deducted from your parent's estate.

The Takeaway

Every week of delay without legal authority costs families in stress, in money, and in their parent's care quality. If your parent still has the capacity to understand what a power of attorney does and sign one voluntarily, that window may not stay open.

The New Brunswick Power of Attorney & Personal Directive Kit includes preparation worksheets for both property and personal care EPAs, plus a pre-appointment checklist that organizes everything your parent's lawyer needs to see — so the drafting appointment itself takes less time and costs fewer billable hours.

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