The following definitions apply in this Act.
“court” means the The Court of King’s Bench of New Brunswick and includes a judge of the court.(cour)
“financial matter” means a matter relating to the property or finances of a person.(question relative aux finances)
“health care” means anything done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose, including a course of treatment.(soins de santé)
“personal care matter” means a matter relating to the personal well-being of a person, including, but not limited to, health care, diet, clothing, accommodation, support services, education, employment, recreation and social activities.(question relative aux soins personnels)
“Public Trustee” means the Public Trustee appointed under the Public Trustee Act.(curateur public)
“trust company” means trust company as defined in the Loan and Trust Companies Act.(compagnie de fiducie)
In this Act, a reference to “assistance” in relation to decision-making means any measure that helps a person have the capacity to make a decision, including explanations of relevant information and reasonably foreseeable consequences of the available options.
A person has the capacity to make a decision if the person is able to
(a) understand the information that is relevant to the decision, and
(b) appreciate the reasonably foreseeable consequences of the decision.
A person has the capacity to make a decision if the person is able to satisfy paragraphs (1)(a) and (b) with the assistance that is available.
A person may have the capacity to make a decision even if the person
(a) makes or would make a decision that another person would consider risky or unwise,
(b) lacked the capacity to make a similar decision in the past,
(c) lacks the capacity to make other decisions, or
(d) requires assistance to communicate.
A person is presumed to have the capacity to make a decision unless the contrary is demonstrated.
The purpose of this Act is to protect and promote the autonomy and dignity of persons who require support in relation to decision-making in accordance with the principle that persons should receive the support they need to make or to participate in decisions about their lives to the greatest extent possible.
In this Part, “assisted person” means a person who is making or who has made a decision-making assistance authorization.
A person who is 19 years of age or older and who has the capacity to make a decision-making assistance authorization may make one in accordance with this Part.
A person has the capacity to make a decision-making assistance authorization if the person has the capacity to make the decisions involved, including decisions about
(a) whom to appoint as a decision-making assistant,
(b) the matters in relation to which a decision-making assistant may exercise powers, and
(c) the powers that a decision-making assistant may exercise.
A decision-making assistance authorization may be made in relation to any of the following:
(a) all or some of the personal care matters of an assisted person; and
(b) all or some of the financial matters of an assisted person.
A decision-making assistance authorization may authorize a decision-making assistant to exercise any of the following powers:
(a) the power to obtain from any person any information that is relevant to a decision of the assisted person or to assist the assisted person in obtaining that information; and
(b) the power to communicate a decision of the assisted person to other persons or to assist the assisted person in communicating their decision.
A decision-making assistance authorization shall be in a form prescribed by regulation and shall
(a) identify each person appointed as a decision-making assistant and the person’s relationship to the assisted person,
(b) contain a signed statement by each person appointed as a decision-making assistant indicating that the person consents to the appointment,
(c) specify the matters in relation to which a decision-making assistant may exercise powers,
(d) specify the powers that a decision-making assistant may exercise in relation to the matters in paragraph (c),
(e) contain a statement signed by a lawyer indicating that the lawyer
(i) is a practising member of the Law Society of New Brunswick,
(ii) has reviewed the provisions of the decision-making assistance authorization with the assisted person,
(iii) was present when the decision-making assistance authorization was signed and dated in accordance with subsection (7), and
(iv) is of the opinion that the assisted person has the capacity to make the decision-making assistance authorization,
(f) contain a statement by the person signing on behalf of the assisted person, if applicable, indicating that the person signed and dated the decision-making assistance authorization at the direction and in the presence of the assisted person in accordance with subsection (7),
(g) indicate, if applicable, that an electronic means of communication in accordance with the regulations was used when the decision-making authorization was signed and dated in accordance with subsection (7), and
(h) contain any additional information prescribed by regulation.
A decision-making assistance authorization may
(a) specify conditions or restrictions on the powers of the decision-making assistant,
(b) specify a date on which the decision-making assistance authorization expires, and
(c) contain a statement indicating that any previous decision-making assistance authorization is revoked.
A decision-making assistance authorization shall be signed and dated in the presence of a lawyer
(a) by the assisted person, or
(b) subject to subsection (8), by a person on behalf of the assisted person if
(i) the assisted person is unable to sign and date the decision-making assistance authorization, and
(ii) the person is 19 years of age or older and signs and dates the decision-making assistance authorization at the direction and in the presence of the assisted person.
A person who is appointed as a decision-making assistant under a decision-making authorization is not eligible to sign the decision-making authorization on behalf of the assisted person.
The requirements in subsection (7) for signing and dating a decision-making assistance authorization in the presence of another person may be satisfied by signing and dating complete, identical copies of the decision-making assistance authorization in counterpart through an electronic means of communication in accordance with the regulations.
A decision-making assistance authorization is effective from the date it is signed and dated in accordance with subsection (7).
If more than one decision-making assistant is appointed under a decision-making assistance authorization, the decision-making assistants may exercise their powers separately or jointly.
If a decision-making assistant’s appointment is terminated, any remaining decision-making assistants may continue to act.
A decision-making assistance authorization remains in effect until
(a) the assisted person revokes it by providing notice to each decision-making assistant appointed under the authorization,
(b) the appointment of each decision-making assistant appointed under the authorization has terminated,
(c) the date specified in the authorization as the date on which it expires,
(d) the court makes an order terminating the authorization,
(e) the court makes an order appointing a decision-making supporter or a representative for the assisted person, unless the court orders otherwise, or
(f) the assisted person dies.
Subject to subsection (2), a person who is 19 years of age or older is eligible to be appointed as a decision-making assistant.
The following persons are not eligible to be appointed as a decision-making assistant:
(a) the Public Trustee;
(b) a person who provides health care services or support services to the assisted person for compensation; and
(c) a member of a class of persons prescribed by regulation.
Paragraph (2)(b) does not apply to a spouse, common-law partner or relative of an assisted person who provides health care services or support services to the assisted person for compensation.
A decision-making assistant shall not exercise any power in relation to a matter prescribed by regulation, unless the court orders otherwise.
A decision-making assistant shall not exercise any power in relation to a decision if, in the decision-making assistant’s opinion, the assisted person does not have the capacity to make the decision even with assistance.
A decision-making assistant shall not exercise any power in relation to a decision without the consent of the assisted person.
A decision-making assistant may provide assistance to the assisted person in making a decision but shall not make a decision on behalf of the assisted person.
A decision-making assistant shall not delegate any of the decision-making assistant’s powers under a decision-making assistance authorization.
A decision-making assistant may decline to communicate or assist the assisted person in communicating a decision if the decision would cause serious harm to the assisted person.
A decision-making assistant who has the powers referred to in paragraph 6(4)(a) may request information that is relevant to a matter specified in the decision-making assistance authorization from any person.
A decision-making assistant shall not request information that the decision-making assistant is not entitled to request under subsection (1).
A person who receives a request for information referred to in subsection (1) shall provide the decision-making assistant with the information.
A decision-making assistant who obtains information under this section
(a) shall use the information only to the extent necessary to exercise the powers and perform the duties of the decision-making assistant,
(b) shall disclose the information only to the extent necessary to exercise the powers and perform the duties of the decision-making assistant, and
(c) shall take reasonable measures to ensure the information is secure from unauthorized use or disclosure.
A decision-making assistant shall act honestly and in good faith and shall exercise reasonable care.
A decision-making assistant shall not act for the decision-making assistant’s own benefit or for the benefit of a person other than the assisted person.
Subject to subsection (2), a decision made by an assisted person with the assistance of a decision-making assistant or communicated by or with the assistance of a decision-making assistant is the decision of the assisted person for all purposes provided that the decision-making assistant acted in accordance with the decision-making assistant’s powers and duties.
A person may refuse to recognize a decision made with the assistance of a decision-making assistant or communicated by or with the assistance of a decision-making assistant if the person has reasonable grounds to believe that the decision-making assistant did not act in accordance with the decision-making assistant’s powers and duties.
A decision made with the assistance of a decision-making assistant or communicated by or with the assistance of a decision-making assistant who did not act in accordance with the decision-making assistant’s powers and duties is valid and binding on the assisted person in relation to persons affected by the decision who did not know and had no reasonable grounds to believe that the decision-making assistant did not act in accordance with those powers and duties.
A decision-making assistant shall
(a) keep any records prescribed by regulation, and
(b) provide the records referred to in paragraph (a)
(i) to the assisted person, on that person’s request,
(ii) to another decision-making assistant appointed under the same decision-making assistance authorization, on that person’s request, and
(iii) to the court or to another person, if ordered to do so by the court.
A decision-making assistant is not entitled to receive any remuneration and shall not accept any remuneration.
A decision-making assistant is entitled to be reimbursed for reasonable expenses incurred while exercising the decision-making assistant’s powers and performing the decision-making assistant’s duties.
An assisted person may revoke the appointment of a decision-making assistant by giving notice to that person.
A person may resign as a decision-making assistant by giving notice in writing to the assisted person and to any other decision-making assistant appointed under the same decision-making assistance authorization.
The appointment of a decision-making assistant terminates on the date
(a) the person resigns in accordance with subsection (2),
(b) the person ceases to be eligible under section 9,
(c) the assisted person revokes the appointment in accordance with subsection (1), or
(d) the court makes an order terminating the appointment.
The following persons may apply to the court for an order in relation to a decision-making assistance authorization:
(a) an assisted person;
(b) a decision-making assistant;
(c) the Public Trustee; and
(d) an interested person who is 19 years of age or older.
The court may make any order that it considers appropriate, including an order
(a) giving directions in relation to the decision-making assistance authorization,
(b) authorizing a decision-making assistant to exercise powers in relation to matters referred to in subsection 10(2),
(c) requiring a person who receives a request for information under subsection 11(1) to provide information to a decision-making assistant,
(d) requiring a decision-making assistant to provide documents to the court or to another person,
(e) requiring a decision-making assistant to reimburse the assisted person for any loss suffered as a result of a failure of the decision-making assistant to act in accordance with the decision-making assistant’s powers and duties,
(f) terminating a decision-making assistance authorization, and
(g) terminating the appointment of a decision-making assistant.
In this Part, “supported person” means a person who is the subject of an application for a supported decision-making order or in relation to whom a supported decision-making order has been made.
An interested person who is 19 years of age or older may apply to the court to be appointed as a decision-making supporter for a supported person under a supported decision-making order.
An application for a supported decision-making order shall be accompanied by the following documents:
(a) an affidavit of the applicant;
(b) an affidavit of any proposed decision-making supporter other than the applicant;
(c) a capacity assessment report made in accordance with Part 5;
(d) a financial summary, if the applicant seeks an order appointing a decision-making supporter with powers in relation to financial matters;
(e) any other document prescribed by regulation; and
(f) any other document required by the court.
An affidavit referred to in paragraph (2)(a) shall contain the statements and information prescribed by regulation.
An affidavit referred to in paragraph (2)(b) shall contain the statements and information prescribed by regulation.
A financial summary shall be in a form prescribed by regulation.
Despite paragraph (2)(c), an application does not need to be accompanied by a capacity assessment report if the supported person refuses to undergo or to continue with a capacity assessment.
On an application under subsection 19(1), the court may make a supported decision-making order appointing one or more decision-making supporters for a supported person if it is satisfied that
(a) each proposed decision-making supporter
(i) consents to the appointment,
(ii) is eligible to be appointed, and
(iii) is suitable to be appointed,
(b) the supported person does not have the capacity to make all the decisions that are likely to arise in relation to all or some of
(i) their personal care matters,
(ii) their financial matters, or
(iii) their personal care matters and their financial matters,
(c) the supported person and a suitable decision-making supporter could make the decisions referred to in subparagraph (b)(i), (ii) or (iii) through a supported decision-making process, and
(d) a measure that is less intrusive than the appointment of a decision-making supporter is not available to the supported person or, if available, would not meet the supported person’s needs.
In determining whether a person is suitable to be appointed as a decision-making supporter, the court shall consider
(a) the nature of the relationship between the supported person and the proposed decision-making supporter, including whether the relationship is one characterized by trust,
(b) the views of the supported person,
(c) the ability and availability of the proposed decision-making supporter to exercise the powers and perform the duties of a decision-making supporter, including the power to make decisions through a supported decision-making process, and
(d) any other factor that the court considers relevant.
In a supported decision-making order made under subsection 20(1), the court may authorize a decision-making supporter to exercise powers in relation to any of the following:
(a) all or some of the supported person’s personal care matters; and
(b) all or some of the supported person’s financial matters.
A supported decision-making order shall
(a) identify each person appointed as a decision-making supporter and the person’s relationship to the supported person, and
(b) specify the matters in relation to which a decision-making supporter is authorized to exercise powers.
If more than one decision-making supporter is appointed in a supported decision-making order, the order shall specify
(a) the matters in relation to which each decision-making supporter is authorized to exercise powers,
(b) if decision-making supporters are authorized to exercise powers in relation to the same matters, whether they are able to exercise the powers separately or whether they are required to exercise the powers jointly,
(c) the procedure for resolving disputes among the decision-making supporters, and
(d) whether one decision-making supporter may continue to act if the appointment of another decision-making supporter is terminated.
A supported decision-making order may
(a) specify conditions or restrictions on the powers that may be exercised by a decision-making supporter,
(c) authorize a decision-making supporter to keep the decision-making supporter’s property together with the supported person’s property,
(d) require a decision-making supporter to
(i) provide security to the court,
(ii) provide an updated financial summary to the court,
(iii) apply for a review of the order at a specified time or in specified circumstances, and
(iv) provide documents to the court at a specified time or in specified circumstances,
(e) vary, terminate or provide directions in relation to an existing supported decision-making order, representation order, decision-making assistance authorization or enduring power of attorney,
(f) provide that an agreement that gives effect to a decision made by a supported person and a decision-making supporter is voidable unless it is signed by both the supported person and the decision-making supporter,
(g) specify a date on which the order expires, and
(h) provide for any other matter that the court considers appropriate.
A supported decision-making order remains in effect from the date it is made until
(a) the appointment of each decision-making supporter appointed under the order has terminated,
(b) the date specified in the order as the date on which it expires,
(c) the court makes an order terminating the order, or
(d) the supported person dies.
Subject to subsection (2), a person who is 19 years of age or older is eligible to be appointed as a decision-making supporter.
The following persons are not eligible to be appointed as a decision-making supporter:
(a) the Public Trustee;
(b) a person who provides health care services or support services to the supported person for compensation; and
(c) a member of a class of persons prescribed by regulation.
Paragraph (2)(b) does not apply to a spouse, common-law partner or relative of a supported person who provides health care services or support services to the supported person for compensation.
A decision-making supporter may
(a) obtain or assist the supported person in obtaining from any person any information that is relevant to a decision of the supported person,
(b) make decisions with the supported person through a supported decision-making process,
(c) communicate or assist the supported person in communicating a decision of the supported person to other persons, and
(d) do anything necessary to give effect to a decision of the supported person.
A decision-making supporter shall not make a decision on behalf of the supported person.
A decision-making supporter shall not exercise powers in relation to the following financial matters unless expressly authorized to do so in the supported decision-making order:
(a) the making, amending or revoking of the supported person’s will;
(b) the giving of gifts or donations or the making of loans by the supported person;
(c) the providing of financial support by the supported person to the supported person’s spouse, common-law partner or dependant or any other person; and
(d) any other financial matter prescribed by regulation.
A decision-making supporter shall not exercise powers in relation to any personal care matter prescribed by regulation unless expressly authorized to do so in the supported decision-making order.
A decision-making supporter shall not delegate any of the decision-making supporter’s powers under the supported decision-making order.
A decision-making supporter may request information that is relevant to a matter specified in the supported decision-making order from any person.
A decision-making supporter who has powers in relation to a supported person’s financial matters shall make reasonable efforts to determine whether the supported person has a will and, if so, to request a copy of the will and review it.
A decision-making supporter who has powers in relation to a supported person’s health-care-related personal care matters shall make reasonable efforts to determine whether the supported person has a health care directive and, if so, to request a copy of the health care directive and review it.
A person shall provide a decision-making supporter with
(a) information that is relevant to a matter specified in the supported decision-making order, on a request under subsection (1),
(b) a copy of the supported person’s will, on a request under subsection (2), and
(c) a copy of the supported person’s health care directive, on a request under subsection (3).
A decision-making supporter who obtains information or a document under this section
(a) shall use the information or document only to the extent necessary to exercise the powers and perform the duties of the decision-making supporter,
(b) shall disclose the information or document only to the extent necessary to exercise the powers and perform the duties of the decision-making supporter, and
(c) shall take reasonable measures to ensure the information or document is secure from unauthorized use or disclosure.
A decision-making supporter shall act honestly and in good faith and shall exercise reasonable care.
A decision-making supporter shall not act for the decision-making supporter’s own benefit or for the benefit of a person other than the supported person.
A decision-making supporter shall keep the decision-making supporter’s property separate and apart from the property of the supported person unless expressly authorized in the supported decision-making order to keep the decision-making supporter’s property together with the supported person’s property.
At the time a decision-making supporter is appointed, the decision-making supporter shall explain the decision-making supporter’s powers and duties to the supported person in a manner that the supported person is likely to best understand.
A decision-making supporter shall inform the supported person of any actions taken by the decision-making supporter in exercising the decision-making supporter’s powers, to the extent that it is reasonable to do so.
In making decisions with a supported person through a supported decision-making process, a decision-making supporter shall
(a) discuss the relevant information and the reasonably foreseeable consequences of the available options with the supported person in a manner that the supported person is likely to best understand,
(b) assess the available options together with the supported person on the basis of the supported person’s wishes and preferences, including those expressed by the supported person at the time the options are discussed and those that are otherwise known to the decision-making supporter, and
(c) ensure that the decision is guided by the supported person’s wishes and preferences.
A decision-making supporter shall accept a decision made with a supported person through a supported decision-making process unless doing so would cause serious harm to the supported person, in which case the decision-making supporter may refuse
(a) to communicate or assist the supported person in communicating the decision, or
(b) to do anything to give effect to the decision.
For the purposes of paragraphs (1)(b) and (c), the instructions in a health care directive of a supported person and the provisions of a will of a supported person shall be considered to be an expression of a supported person’s wishes and preferences and shall be considered along with other expressions of the person’s wishes and preferences.
Subject to subsection (2), a decision made by a supported person and a decision-making supporter through a supported decision-making process or communicated by or with the assistance of a decision-making supporter is the decision of the supported person for all purposes provided that the decision-making supporter acted in accordance with the decision-making supporter’s powers and duties.
A person may refuse to recognize a decision made by a supported person and a decision-making supporter through a supported decision-making process or communicated by or with the assistance of a decision-making supporter if the person has reasonable grounds to believe that the decision-making supporter did not act in accordance with the decision-making supporter’s powers and duties.
A decision made through a supported decision-making process by a supported person and a decision-making supporter who did not act in accordance with the decision-making supporter’s powers and duties or a decision communicated by or with the assistance of a decision-making supporter who did not act in accordance with the decision-making supporter’s powers and duties is valid and binding on the supported person in relation to persons affected by the decision who did not know and had no reasonable grounds to believe that the decision-making supporter did not act in accordance with those powers and duties.
If ordered by the court, an agreement that gives effect to a decision made by a supported person and a decision-making supporter through a supported decision-making process is voidable unless it is signed by both the supported person and the decision-making supporter.
A decision-making supporter shall
(a) keep
(i) any records prescribed by regulation, and
(ii) any other records that are necessary to provide a complete account of the actions taken by the decision-making supporter in relation to the financial matters of the supported person, and
(b) provide the records referred to in paragraph (a)
(i) to the supported person, on that person’s request,
(ii) to another decision-making supporter appointed under the same supported decision-making order, on that person’s request, and
(iii) to the court or to another person, if ordered to do so by the court.
A decision-making supporter is not entitled to receive any remuneration and shall not accept any remuneration.
A decision-making supporter is entitled to be reimbursed for reasonable expenses incurred while exercising the decision-making supporter’s powers and performing the decision-making supporter’s duties.
A person may resign as a decision-making supporter by giving notice in writing to
(a) the supported person,
(b) any other decision-making supporter appointed under the same supported decision-making order, and
(c) the court.
The appointment of a decision-making supporter terminates on the date
(a) the person resigns in accordance with subsection (1),
(b) the person ceases to be eligible under section 23, or
(c) the court makes an order terminating the appointment.
The following persons may apply to the court for a review of a supported decision-making order:
(a) a supported person;
(b) a decision-making supporter;
(c) the Public Trustee; and
(d) an interested person who is 19 years of age or older.
At any time, the court may order a decision-making supporter to apply for a review of a supported decision-making order.
A decision-making supporter shall apply to the court for a review of a supported decision-making order if
(a) the court has ordered the decision-making supporter to do so, or
(b) there has been a significant change in the circumstances of the supported person or of the decision-making supporter that is relevant to the order.
If an application is made for a review of a supported decision-making order, the court may require a decision-making supporter to provide
(a) the records kept by the decision-making supporter,
(b) a capacity assessment report made in accordance with Part 5, and
(c) any other document.
On an application for a review of a supported decision-making order, the court may make any order that it considers appropriate, including an order
(a) continuing the order,
(b) terminating the order,
(c) varying the order, including terminating the appointment of one or more decision-making supporters, and
(d) requiring a decision-making supporter to reimburse the supported person for any loss suffered as a result of a failure of the decision-making supporter to act in accordance with the decision-making supporter’s powers and duties.
A decision-making supporter may apply to the court for directions in relation to a supported decision-making order.
On an application for directions, the court may make any order that it considers appropriate, including an order
(a) giving directions in relation to the powers of a decision-making supporter,
(c) requiring a person to provide information or a document requested by a decision-making supporter under section 25.
If the court authorizes a decision-making supporter to exercise powers in relation to the making, amending or revoking of the will of a supported person, the will, amendment or revocation is not valid until it is approved by the court.
The court may approve a will, amendment or revocation referred to in subsection (3) if the court is satisfied that the decision-making supporter acted in accordance with this Act.
When approved by the court, a new or amended will is for all purposes the will of the supported person.
A person who is directly affected by the disposal of property by a decision-making supporter that is the subject of a specific gift in a supported persons’s will may apply to the court for directions.
On an application under subsection (1), the court shall consider the intentions of the supported person and the circumstances in which the property was disposed of and may make any order it considers appropriate.
In this Part, “represented person” means a person who is the subject of an application for a representation order or in relation to whom a representation order has been made.
The following persons may apply to the court to be appointed as a representative for a represented person under a representation order:
(a) an interested person who is 19 years of age or older;
(b) the Public Trustee;
(c) a trust company; and
(d) a member of a class of persons prescribed by regulation.
An application for a representation order shall be accompanied by the following documents:
(a) an affidavit of the applicant;
(b) an affidavit of any proposed representative other than the applicant;
(c) a capacity assessment report made in accordance with Part 5;
(d) a financial summary, if the applicant seeks an order appointing a representative with powers in relation to financial matters;
(e) any other document prescribed by regulation; and
(f) any other document required by the court.
An affidavit referred to in paragraph (2)(a) shall contain the statements and information prescribed by regulation.
An affidavit referred to in paragraph (2)(b) shall contain the statements and information prescribed by regulation.
A financial summary shall be in a form prescribed by regulation.
Despite paragraph (2)(c), an application does not need to be accompanied by a capacity assessment report if the represented person refuses to undergo or to continue with a capacity assessment.
Despite paragraph (2)(d), an application made by the Public Trustee does not need to be accompanied by a financial summary, but the Public Trustee shall provide the court with a financial summary within six months after being appointed as a representative with powers in relation to financial matters.
On an application under subsection 36(1), the court may make a representation order appointing one or more representatives for a represented person if it is satisfied that
(a) each proposed representative
(i) consents to the appointment,
(ii) is eligible to be appointed, and
(iii) is suitable to be appointed,
(b) the represented person does not have the capacity to make all the decisions that are likely to arise in relation to all or some of
(i) their personal care matters,
(ii) their financial matters, or
(iii) their personal care matters and their financial matters, and
(c) a measure that is less intrusive than the appointment of a representative is not available to the represented person or, if available, would not meet the represented person’s needs.
In determining whether a person is suitable to be appointed as a representative, the court shall consider
(a) the nature of the relationship between the represented person and the proposed representative, including whether the relationship is one characterized by trust,
(b) the views of the represented person,
(c) the ability and availability of the proposed representative to exercise the powers and perform the duties of a representative, and
(d) any other factor that the court considers relevant.
In a representation order made under subsection 37(1), the court may authorize a representative to exercise powers in relation to any of the following:
(a) all or some of the represented person’s personal care matters; and
(b) all or some of the represented person’s financial matters.
A representation order shall
(a) identify each person appointed as a representative and the person’s relationship to the represented person, and
(b) specify the matters in relation to which a representative is authorized to exercise powers.
If more than one representative is appointed in a representation order, the order shall specify
(a) the matters in relation to which each representative is authorized to exercise powers,
(b) if representatives are authorized to exercise powers in relation to the same matters, whether they are able to exercise the powers separately or whether they are required to exercise the powers jointly,
(c) the procedure for resolving disputes among the representatives, and
(d) whether one representative may continue to act if the appointment of another representative is terminated.
A representation order may
(a) specify conditions or restrictions on the powers that may be exercised by a representative,
(c) authorize a representative to keep the representative’s property together with the property of the represented person,
(d) authorize a representative to receive remuneration,
(e) require a representative to
(i) provide security to the court,
(ii) provide an updated financial summary to the court,
(iii) apply for a review of the order at a specified time or in specified circumstances, and
(iv) provide documents to the court at a specified time or in specified circumstances,
(f) vary, terminate or provide directions in relation to an existing representation order, supported decision-making order, decision-making assistance authorization or enduring power of attorney,
(g) specify a date on which the order expires, and
(h) provide for any other matter that the court considers appropriate.
A representation order remains in effect from the date it is made until
(a) the appointment of each representative appointed under the order has terminated,
(b) the date specified in the order as the date on which it expires,
(c) the court makes an order terminating the order, or
(d) the represented person dies.
Subject to subsection (3), the following persons are eligible to be appointed as a representative:
(a) a person who is 19 years of age or older; and
(b) the Public Trustee.
The following persons are eligible to be appointed as a representative only in relation to financial matters:
(a) a trust company; and
(b) a member of a class of persons prescribed by regulation.
The following persons are not eligible to be appointed as a representative:
(a) a person who provides health care services or support services to the represented person for compensation; and
(b) a member of a class of persons prescribed by regulation.
Paragraph (3)(a) does not apply to a spouse, common-law partner or relative of a represented person who provides health care services or support services to the represented person for compensation.
A representative may
(a) make decisions and act on behalf of the represented person, and
(b) obtain from any person any information that is relevant to a matter specified in the representation order.
A representative shall not make a decision on behalf of a represented person if the representative is of the opinion that the represented person has the capacity to make the decision.
A representative shall not exercise powers in relation to the following financial matters unless expressly authorized to do so in the representation order:
(a) the making, amending or revoking of the represented person’s will;
(b) the giving of gifts or donations or the making of loans by the represented person;
(c) the providing of financial support by the represented person to the represented person’s spouse, common-law partner or dependant or any other person; and
(d) any other financial matter prescribed by regulation.
A representative shall not exercise powers in relation to a personal care matter prescribed by regulation unless expressly authorized to do so in the representation order.
A representative shall not delegate any of the representative’s powers under the representation order.
A representative may request information that is relevant to a matter specified in the representation order from any person.
A representative who has powers in relation to a represented person’s financial matters shall make reasonable efforts to determine whether the represented person has a will and, if so, to request a copy of the will and review it.
A representative who has powers in relation to a represented person’s health-care-related personal care matters shall make reasonable efforts to determine whether the represented person has a health care directive and, if so, to request a copy of the health care directive and review it.
A person shall provide a representative with
(a) information that is relevant to a matter specified in the representation order, on a request under subsection (1),
(b) a copy of the represented person’s will, on a request under subsection (2), and
(c) a copy of the represented person’s health care directive, on a request under subsection (3).
A representative who obtains information or a document under this section
(a) shall use the information or document only to the extent necessary to exercise the powers and perform the duties of the representative,
(b) shall disclose the information or document only to the extent necessary to exercise the powers and perform the duties of the representative, and
(c) shall take reasonable measures to ensure the information or document is secure from unauthorized use or disclosure.
A representative shall act honestly and in good faith and shall exercise reasonable care.
A representative shall not act for the representative’s own benefit or for the benefit of a person other than the represented person.
A representative shall keep the representative’s property separate and apart from the property of the represented person unless expressly authorized in the representation order to keep the representative’s property together with the represented person’s property.
At the time a representative is appointed, the representative shall explain the representative’s powers and duties to the represented person in a manner that the represented person is likely to best understand.
A representative shall inform the represented person of any actions taken by the representative in exercising the representative’s powers, to the extent that it is reasonable to do so.
Subject to subsection (2), when making a decision on behalf of a represented person, a representative is required to
(a) discuss the relevant information and the reasonably foreseeable consequences of the available options with the represented person in a manner that the represented person is likely to best understand, to the extent that it is reasonable to do so,
(b) assess the available options on the basis of the represented person’s wishes and preferences, including those expressed by the represented person at the time the options are discussed and those that are otherwise known to the representative, and
(c) ensure that the decision is guided by the represented person’s wishes and preferences.
If a representative does not have sufficient knowledge of the represented person’s wishes and preferences to ensure that the decision is guided by them or if a decision guided by those wishes and preferences would result in serious harm to the represented person, the representative shall make the decision that the representative believes will best promote the represented person’s well-being.
For the purposes of paragraphs (1)(b) and (c), the instructions in a health care directive of a represented person and the provisions of a will of a represented person shall be considered to be an expression of a represented person’s wishes and preferences and shall be considered along with other expressions of the person’s wishes and preferences.
Subject to subsection (2), a decision made by a representative on behalf of a represented person is the decision of the represented person for all purposes provided that the representative acted in accordance with the representative’s powers and duties.
A person may refuse to recognize a decision made by a representative on behalf of a represented person if the person has reasonable grounds to believe that the representative did not act in accordance with the representative’s powers and duties.
A decision made by a representative who did not act in accordance with the representative’s powers and duties is valid and binding on the represented person in relation to persons affected by the decision who did not know and had no reasonable grounds to believe that the representative did not act in accordance with those duties and powers.
A representative shall
(a) keep
(i) any records prescribed by regulation, and
(ii) any other records that are necessary to provide a complete account of the actions taken by the representative in relation to the financial matters of the represented person, and
(b) provide the records referred to in paragraph (a)
(i) to the represented person, on that person’s request,
(ii) to another representative appointed under the same representation order, on that person’s request, and
(iii) to the court or to another person, if ordered to do so by the court.
A representative is not entitled to receive any remuneration and shall not accept any remuneration unless expressly authorized to do so in the representation order.
A representative is entitled to be reimbursed for reasonable expenses incurred while exercising the representative’s powers and performing the representative’s duties.
A person may resign as a representative by giving notice in writing to
(a) the represented person,
(b) any other representative appointed under the same representation order, and
(c) the court.
The appointment of a representative terminates on the date
(a) the person resigns in accordance with subsection (1),
(b) the person ceases to be eligible under section 40, or
(c) the court makes an order terminating the appointment.
The following persons may apply to the court for a review of a representation order:
(a) a represented person;
(b) a representative;
(c) the Public Trustee; and
(d) an interested person who is 19 years of age or older.
At any time, the court may order a representative to apply for a review of a representation order.
A representative shall apply to the court for a review of a representation order if
(a) the court has ordered the representative to do so, or
(b) there has been a significant change in the circumstances of the represented person or of the representative that is relevant to the order.
If an application is made for a review of a representation order, the court may require a representative to provide
(a) the records kept by the representative,
(b) a capacity assessment report made in accordance with Part 5, and
(c) any other document.
On an application for a review of a representation order, the court may make any order that it considers appropriate, including an order
(a) continuing the order,
(b) terminating the order,
(c) varying the order, including terminating the appointment of one or more representatives, and
(d) requiring a representative to reimburse the represented person for any loss suffered as a result of a failure of the representative to act in accordance with the representative’s powers and duties.
A representative may apply to the court for directions in relation to a representation order.
On an application for directions, the court may make any order that it considers appropriate, including an order
(a) giving directions in relation to the powers of a representative,
(c) requiring a person to provide information or a document requested by a representative under section 42.
If the court authorizes a representative to exercise powers in relation to the making, amending or revoking of the will of a represented person, the will, amendment or revocation is not valid until it is approved by the court.
The court may approve a will, amendment or revocation referred to in subsection (3), if the court is satisfied that the representative acted in accordance with this Act.
When approved by the court, a new or amended will is for all purposes the will of the represented person.
A person who is directly affected by the disposal of property by a representative that is the subject of a specific gift in a represented persons’s will may apply to the court for directions.
On an application under subsection (1), the court shall consider the intentions of the represented person and the circumstances in which the property was disposed of and may make any order it considers appropriate.
In this Part, “assessor” means
(a) a medical practitioner lawfully entitled to practise in the Province,
(b) a nurse practitioner lawfully entitled to practise in the Province,
(c) a psychologist lawfully entitled to practise in the Province, or
(d) a member of a class of persons prescribed by regulation.
A capacity assessment that is conducted for the purposes of this Act shall be conducted by an assessor in accordance with the regulations.
If a person refuses to undergo or to continue with a capacity assessment, the assessor shall take no further steps in the assessment and shall notify the person who requested the assessment.
After completing a capacity assessment, an assessor shall prepare a capacity assessment report in the form prescribed by regulation.
For the purposes of this Act, a capacity assessment report in the form prescribed by regulation is admissible in evidence without the proof of the assessor’s signature or qualifications.
A person is entitled to refuse to undergo or to continue with a capacity assessment that is conducted for the purposes of this Act.
During a capacity assessment, a person is entitled to
(a) have a person of their choosing accompany them,
(b) have a device or an interpreter or other person to assist them to communicate, and
(c) ask the assessor questions or raise concerns with the assessor about the assessment.
A person who has undergone a capacity assessment is entitled to receive a copy of the capacity assessment report on request.
A person who has undergone a capacity assessment is entitled to ask the assessor questions or raise concerns with the assessor about the results of the assessment.
An assessor may conduct a capacity assessment without the person in respect of whom the assessment is conducted if
(a) the person refuses to undergo or to continue with the capacity assessment or cannot reasonably participate in the assessment, and
(b) the assessor is satisfied that the assessment can be completed accurately using the information available.
An assessor who is conducting a capacity assessment for the purposes of this Act may request information that is relevant to the assessment from any person.
A person who receives a request for information referred to in subsection (1) shall provide the assessor with the information.
An assessor shall not request any information that the assessor is not entitled to request under subsection (1).
An assessor who obtains information under this section
(a) shall use the information only to the extent necessary to conduct the capacity assessment and prepare a capacity assessment report,
(b) shall disclose the information only to the extent necessary to conduct the capacity assessment and prepare a capacity assessment report, and
(c) shall take reasonable measures to ensure the information is secure from unauthorized use or disclosure.
To the extent that they are not inconsistent with this Act and the regulations, the Rules of Court apply to applications under this Act.
The court may order that any costs or expenses incurred in an application under this Act be paid
(a) by a party to the application,
(b) out of property of the person in relation to whom the application is made, or
In the event of an inconsistency between the provisions of two or more decision-making assistance authorizations made by the same person, the most recent provision prevails.
In the event of an inconsistency between the provisions of a decision-making assistance authorization made by a person and an enduring power of attorney made by the same person, the most recent provision prevails.
In the event of an inconsistency between a provision of a decision-making assistance authorization made by a person or an enduring power of attorney made by a person and a provision of a supported decision-making order or representation order made in relation to the same person, the provision of the order prevails.
A document made outside the Province shall be deemed to be a valid decision-making assistance authorization under this Act if it
(a) gives a person comparable powers to the powers of a decision-making assistant, and
(b) is valid according to the law of the place where it was made.
A person who has powers under an order made outside the Province that are comparable to the powers of a decision-making supporter or a representative under this Act may apply to the court for an order declaring that the order made outside the Province is of the same effect as a supported decision-making order or representation order, as the case may be, made by the court under this Act.
An application under subsection (1) shall be accompanied by the following documents:
(a) an affidavit of the applicant;
(b) the order referred to in subsection (1);
(c) a financial summary, if the applicant seeks an order declaring a person to be a decision-making supporter or representative with powers in relation to financial matters; and
(d) any other document required by the court.
The court may make an order under subsection (1) if it receives a document issued by the court or body outside the Province that made the order certifying that the order remains in effect.
An order under subsection (1) may
(a) require a person who is declared to be a decision-making supporter or representative to
(i) provide security to the court,
(ii) apply for a review of the order at a specified time or in specified circumstances, and
(iii) provide documents to the court at a specified time or in specified circumstances, and
(b) specify any conditions or restrictions on the powers that may be exercised by a person who is declared to be a decision-making supporter or representative.
No action or other proceeding lies or shall be instituted against a person by reason of anything done or purported to be done in good faith or by reason of anything omitted in good faith by the person in the exercise of a power or the performance of a duty under this Act.
The Lieutenant-Governor in Council may make regulations
(a) prescribing the form and content of a decision-making assistance authorization;
(b) prescribing information for the purpose of paragraph 6(5)(h);
(c) respecting the use of an electronic means of communication for signing a decision-making assistance authorization;
(d) prescribing classes of persons for the purpose of paragraph 9(2)(c);
(e) prescribing matters for the purpose of subsection 10(2);
(f) prescribing records for the purpose of paragraph 14(a);
(g) prescribing documents for the purpose of paragraph 19(2)(e);
(h) prescribing statements and information for the purpose of subsection 19(3);
(i) prescribing statements and information for the purpose of subsection 19(4);
(j) prescribing the form and content of a financial summary;
(k) prescribing classes of persons for the purpose of paragraph 23(2)(c);
(l) prescribing financial matters for the purpose of paragraph 24(4)(d);
(m) prescribing personal care matters for the purpose of subsection 24(5);
(n) prescribing records for the purpose of subparagraph 29(a)(i);
(o) prescribing classes of persons for the purpose of paragraph 36(1)(d);
(p) prescribing documents for the purpose of paragraph 36(2)(e);
(q) prescribing statements and information for the purpose of subsection 36(3);
(r) prescribing statements and information for the purpose of subsection 36(4);
(s) prescribing classes of persons for the purpose of paragraph 40(2)(b);
(t) prescribing classes of persons for the purpose of paragraph 40(3)(b);
(u) prescribing financial matters for the purpose of paragraph 41(4)(d);
(v) prescribing personal care matters for the purpose of subsection 41(5);
(w) prescribing records for the purpose of subparagraph 46(a)(i);
(y) respecting the conduct of a capacity assessment;
(z) prescribing the form and content of a capacity assessment report;
(aa) respecting training requirements for assessors;
(bb) defining any word or expression used but not defined in this Act for the purpose of this Act, the regulations or both.
(i) in paragraph (h) by striking out “a committee of the estate for the grantor under the Infirm Persons Act,” and substituting “a decision-making supporter or representative for the grantor with powers in relation to financial matters under the Supported Decision-Making and Representation Act, unless the court orders otherwise,”;
(ii) in paragraph (i) by striking out “a committee of the person for the grantor under the Infirm Persons Act,” and substituting “a decision-making supporter or representative for the grantor with powers in relation to personal care matters under the Supported Decision-Making and Representation Act, unless the court orders otherwise,”;