Did you know? A power of attorney for property that would have been perfectly valid in 2019 can be worthless if it was signed in 2021 without a lawyer in the room. On July 1, 2020, New Brunswick’s Enduring Powers of Attorney Act, SNB 2019 c. 30, came into force and made lawyer certification a condition of validity for property documents.
The new Act replaced a patchwork of rules scattered across the Property Act, the Infirm Persons Act and the Advance Health Care Directives Act, the last of which was repealed outright. That consolidation solved real problems, but it also means guidance written before mid-2020 — and a good deal of what circulates online — describes a system that no longer exists.
This article sets out what the Act requires when creating an enduring power of attorney in the province, how the rules differ between property and personal care, the duties placed on an appointed attorney, and what has to happen before the document can be used in another country.
Need help with document apostille/legalization/authentication/attestation — and/or criminal record check in Canada? Contact us via our form, call us at +1-613-501-0555 (WhatsApp available) or +1-800-857-1215 (toll-free), fax us via 1-844-786-2001, or text us at info@lsccanada.ca.
PLEASE NOTE! If you urgently need to use a power of attorney in another country, we have a way to quickly legalize this document regardless of the Canadian province in which it was issued.
The fastest way to obtain an apostille is in Ontario — this can be done within a couple of days, compared to weeks in Alberta, British Columbia, Quebec, and so on. But to legalize a power of attorney in Ontario, does this document have to be issued in that province? Yes, but it is also acceptable to obtain an apostille for a notarized copy of this document made in Ontario. This makes it very easy and legal to speed up the possibility of using this document in any country in the world, literally dozens of times over.
Two Documents, One Framework
An enduring power of attorney under the current legislation covers two distinct kinds of authority, which may sit in separate documents or be combined into one.
Power of Attorney for Property
This gives an attorney for property authority over all matters, or specified matters, relating to the property and financial affairs of the grantor. Banking, real estate, investments, tax and bill payment all fall here.
Power of Attorney for Personal Care
This gives an attorney for personal care authority over personal care matters, and may include instructions with respect to health care decisions. Since the Advance Health Care Directives Act was repealed, a health care directive can no longer be used to appoint a decision-maker in New Brunswick — that appointment now happens only through an enduring power of attorney for personal care.
One timing difference matters. An attorney for property may act as soon as the document permits it, whereas an attorney for personal care may exercise authority only once the grantor has been determined to lack capacity.
Creating Powers of Attorney: the Signing Rules
This is where the Act departs most sharply from the old law, and where most defective documents are created.
Where an Attorney for Property Is Appointed
The enduring power of attorney must be in writing, signed and dated by the grantor, and signed and dated in the presence of a lawyer. It must also include, or be accompanied by, a written statement in which the lawyer declares that they:
- Are a practising member of the Law Society of New Brunswick
- Reviewed the provisions of the document with the grantor
- Were present when the grantor signed it
- Are of the opinion that the grantor had the capacity to make it
The same requirement applies where an attorney for property and an attorney for personal care are appointed together.
Where Only an Attorney for Personal Care Is Appointed
Here the lawyer certification is not required. The document may instead be signed and dated in the presence of two adult witnesses, neither of whom may be the attorney named in it or a close relative of that person. A spouse or common-law partner of your chosen attorney is therefore not an acceptable witness.
Determining That the Grantor Lacks Capacity
The Act sets out how capacity is judged and lets the grantor designate, in the document itself, the person who will make that determination — which may be the attorney. Where nobody is designated, or the designated person is unable or unwilling to act, an assessor makes the call. A person lacks capacity when they cannot understand information relevant to a decision or appreciate the reasonably foreseeable consequences of making it.
Duties of an Appointed Attorney
The legislation is considerably more explicit than the provisions it replaced about what an attorney must actually do.
- Act in accordance with the Act and with any conditions, restrictions and instructions written into the document
- Exercise reasonable care, and act on behalf of the grantor rather than in the attorney’s own interest
- Consult with the grantor before making decisions on their behalf, where it is reasonable to do so
- Keep records, and produce them where the Act requires it
- Claim only reasonable expenses incurred while acting
The Monitor
A grantor may appoint a monitor whose function is to confirm that the attorney is acting in accordance with the legislation. A monitor can request records from the attorney and apply to the court for orders. For families worried about a single person holding unchecked authority, this is the most useful tool the Act added.
Oversight by Financial Institutions
The Act also places a positive obligation on financial institutions: where a bank has concerns about an attorney’s actions, it must notify the grantor, the monitor if one was appointed, and any other attorney named in the document.
Need help with document apostille/legalization/authentication/attestation — and/or criminal record check in Canada? Contact us via our form, call us at +1-613-501-0555 (WhatsApp available) or +1-800-857-1215 (toll-free), fax us via 1-844-786-2001, or text us at info@lsccanada.ca.
Documents Signed Before July 2020
An enduring power of attorney made before July 1, 2020 under the Property Act or the Infirm Persons Act was not invalidated. Older documents remain valid and are now read as enduring powers of attorney subject to the current legislation.
Two practical consequences follow:
- An older document may be silent on points the current enduring power of attorney rules address — capacity determination, monitors, record-keeping — so the default statutory rules fill the gap
- A document drafted under the repealed health care directive regime no longer appoints a decision-maker in the way it once did
The Act also reaches documents made elsewhere: where a foreign document appoints someone to act on another person’s behalf in property or personal care matters upon incapacity, it is treated as an enduring power of attorney when exercised in the province. Plain-language guides published by the Public Legal Education and Information Service of New Brunswick are a useful starting point before you see a lawyer, though they do not replace advice on your own situation.
Getting a Power of Attorney Apostilled
If your attorney has to deal with a bank, registry or notary abroad, the enduring power of attorney needs an apostille — a certificate confirming that the signature and seal on it are genuine.
Notarization First
Lawyer certification under the Act is not the same thing as notarization for international purposes. A private document must carry a notary’s seal before any authority will look at it, and the notary’s specimen signature has to be registered with the office that will issue the certificate.
Which Authority Handles It
New Brunswick has no provincial apostille office. Documents issued or notarized in the province are handled by Global Affairs Canada through its Authentication Services Section in Ottawa. If the same document happened to be notarized in Ontario, Alberta or Saskatchewan, it would belong to that province’s authority instead — the notary’s location governs, not the client’s.
Frequent Reasons for Rejection
- Photocopies rather than originals bearing a wet seal
- Loose pages that are not securely fastened
- Laminated or coated paper that will not take a stamp
- A missing certified translation where the destination requires one
- A destination outside the Hague Convention, where consular legalization is still needed
Need Help With a Power of Attorney Apostille?
Drafting and certification belong with a New Brunswick lawyer. Everything that happens afterwards — notarization, authentication, apostille, and consular legalization where the destination has not joined the Convention — is a separate process with its own requirements.
Since 2009, Legalization Service Centre has assisted clients with apostille, authentication and legalization of Canadian documents. With more than 15 years of experience, our team handles power of attorney files, corporate records and personal certificates for clients across the country.
Get Your Documents Ready for International Use
An enduring power of attorney is only as good as the formalities behind it. In New Brunswick that now means a lawyer at the table for property appointments, two qualified witnesses for personal care, and clear wording about who decides when capacity has gone.
Whether you need notarization, an apostille, a certified translation, or a Canadian criminal record check, Legalization Service Centre can guide you through every stage.
Need help with document apostille/legalization/authentication/attestation — and/or criminal record check in Canada? Contact us via our form, call us at +1-613-501-0555 (WhatsApp available) or +1-800-857-1215 (toll-free), fax us via 1-844-786-2001, or text us at info@lsccanada.ca.