Bill 20 - Supported Decision-Making and Representation Act

BILL 20

Supported Decision-Making and Representation Act

His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART 1

DEFINITIONS, INTERPRETATION AND PURPOSE

Definitions

1 The following definitions apply in this Act.

“common-law partner” means a person who cohabits in a conjugal relationship with another person if the persons are not married to each other. (conjoint de fait)

“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)

“supported decision-making process” means the process set out in subsection 27(1). (processus de prise de décision accompagnée)

“trust company” means trust company as defined in the Loan and Trust Companies Act. (compagnie de fiducie)

Interpretation of “assistance”

2 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.

Capacity

3( 1) 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.

3( 2) 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.

3( 3) 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,

(d) requires assistance to communicate.

3( 4) A person is presumed to have the capacity to make a decision unless the contrary is demonstrated.

Purpose of Act

4 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.

PART 2

DECISION-MAKING ASSISTANTS

Definition of “assisted person”

5 In this Part, “assisted person” means a person who is making or who has made a decision-making assistance authorization.

Requirements and contents of decision-making assistance authorizations

6( 1) 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.

6( 2) 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

6( 3) 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.

6( 4) 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.

6( 5) 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,

(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.

6( 6) 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

6( 7) 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.

6( 8) 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.

6( 9) 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.

6( 10) A decision-making assistance authorization is effective from the date it is signed and dated in accordance with subsection (7).

Multiple decision-making assistants

7( 1) 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.

7( 2) If a decision-making assistant’s appointment is terminated, any remaining decision-making assistants may continue to act.

When decision-making assistance authorization effective

8 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,

(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.

Eligibility

9( 1) Subject to subsection (2), a person who is 19 years of age or older is eligible to be appointed as a decision-making assistant.

9( 2) 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

9( 3) 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.

Powers

10( 1) Subject to subsections (2), (3) and (4), a decision-making assistant is authorized to exercise the powers specified in the decision-making assistance authorization in relation to the matters specified in the authorization.

10( 2) A decision-making assistant shall not exercise any power in relation to a matter prescribed by regulation, unless the court orders otherwise.

10( 3) 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.

10( 4) A decision-making assistant shall not exercise any power in relation to a decision without the consent of the assisted person.

10( 5) 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.

10( 6) A decision-making assistant shall not delegate any of the decision-making assistant’s powers under a decision-making assistance authorization.

10( 7) 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.

Powers and duties re information

11( 1) 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.

11( 2) A decision-making assistant shall not request information that the decision-making assistant is not entitled to request under subsection (1).

11( 3) A person who receives a request for information referred to in subsection (1) shall provide the decision-making assistant with the information.

11( 4) 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

Duties

12( 1) A decision-making assistant shall act honestly and in good faith and shall exercise reasonable care.

12( 2) 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.

Decisions made with assistance

13( 1) 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.

13( 2) 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.

13( 3) 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.

Records

14 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.

Remuneration and expenses

15( 1) A decision-making assistant is not entitled to receive any remuneration and shall not accept any remuneration.

15( 2) 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.

Revocation, resignation and termination of appointment

16( 1) An assisted person may revoke the appointment of a decision-making assistant by giving notice to that person.

16( 2) 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.

16( 3) 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,

(d) the court makes an order terminating the appointment.

Court orders in relation to decision-making assistance authorizations

17( 1) 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;

(d) an interested person who is 19 years of age or older.

17( 2) 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.

PART 3

DECISION-MAKING SUPPORTERS

Definition of “supported person”

18 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.

Application for order

19( 1) 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.

19( 2) 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;

(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.

19( 3) An affidavit referred to in paragraph (2)(a) shall contain the statements and information prescribed by regulation.

19( 4) An affidavit referred to in paragraph (2)(b) shall contain the statements and information prescribed by regulation.

19( 5) A financial summary shall be in a form prescribed by regulation.

19( 6) 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.

Requirements for making order

20( 1) 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.

20( 2) 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.

Content of order

21( 1) 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.

21( 2) 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.

21( 3) 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,

(d) whether one decision-making supporter may continue to act if the appointment of another decision-making supporter is terminated.

21( 4) A supported decision-making order may

(a) specify conditions or restrictions on the powers that may be exercised by a decision-making supporter,

(b) authorize a decision-making supporter to exercise powers in relation to matters referred to in subsection 24(4) or (5),

(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.

When order effective

22( 1) 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,

(d) the supported person dies.

22( 2) Despite subsection (1), if an application is made under subsection 19(1) for a supported decision-making order appointing one or more decision-making supporters for a supported person who is under 19 years of age, the order takes effect on the date the supported person reaches 19 years of age.

Eligibility

23( 1) Subject to subsection (2), a person who is 19 years of age or older is eligible to be appointed as a decision-making supporter.

23( 2) 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

23( 3) 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.

Powers

24( 1) Subject to subsections (3), (4) and (5), a decision-making supporter is authorized to exercise the powers specified in subsection (2) in relation to the matters specified in the supported decision-making order.

24( 2) 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,

(d) do anything necessary to give effect to a decision of the supported person.

24( 3) A decision-making supporter shall not make a decision on behalf of the supported person.

24( 4) 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.

24( 5) 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.

24( 6) A decision-making supporter shall not delegate any of the decision-making supporter’s powers under the supported decision-making order.

Powers and duties re information

25( 1) A decision-making supporter may request information that is relevant to a matter specified in the supported decision-making order from any person.

25( 2) 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.

25( 3) 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.

25( 4) 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

25( 5) A decision-making supporter shall not request any information or document that the decision-making supporter is not entitled to request under subsection (1), (2) or (3).

25( 6) 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

Duties

26( 1) A decision-making supporter shall act honestly and in good faith and shall exercise reasonable care.

26( 2) 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.

26( 3) 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.

26( 4) 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.

26( 5) 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.

Supported decision-making process

27( 1) 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

27( 2) 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.

27( 3) 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.

Decisions made through supported decision-making process

28( 1) 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.

28( 2) 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.

28( 3) 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.

28( 4) 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.

Records

29 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.

Remuneration and expenses

30( 1) A decision-making supporter is not entitled to receive any remuneration and shall not accept any remuneration.

30( 2) 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.

Resignation and termination of appointment

31( 1) 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

31( 2) 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

Application for review of order

32( 1) 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;

(d) an interested person who is 19 years of age or older.

32( 2) At any time, the court may order a decision-making supporter to apply for a review of a supported decision-making order.

32( 3) 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.

32( 4) 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

32( 5) 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,

(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.

Application for directions re order

33( 1) A decision-making supporter may apply to the court for directions in relation to a supported decision-making order.

33( 2) 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,

(b) authorizing a decision-making supporter to exercise powers in relation to matters referred to in subsection 24(4) or (5), and

33( 3) 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.

33( 4) 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.

33( 5) When approved by the court, a new or amended will is for all purposes the will of the supported person.

Property subject of a specific gift – orders

34( 1) 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.

34( 2) 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.

PART 4

REPRESENTATIVES

Definition of “represented person”

35 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.

Application for order

36( 1) 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;

(d) a member of a class of persons prescribed by regulation.

36( 2) 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;

(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.

36( 3) An affidavit referred to in paragraph (2)(a) shall contain the statements and information prescribed by regulation.

36( 4) An affidavit referred to in paragraph (2)(b) shall contain the statements and information prescribed by regulation.

36( 5) A financial summary shall be in a form prescribed by regulation.

36( 6) 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.

36( 7) 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.

Requirements for making order

37( 1) 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.

37( 2) 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.

Content of order

38( 1) 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.

38( 2) 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.

38( 3) 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,

(d) whether one representative may continue to act if the appointment of another representative is terminated.

38( 4) A representation order may

(a) specify conditions or restrictions on the powers that may be exercised by a representative,

(b) authorize a representative to exercise powers in relation to matters referred to in subsection 41(4) or (5),

(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.

When order effective

39( 1) 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,

(d) the represented person dies.

39( 2) Despite subsection (1), if an application is made under subsection 36(1) for a representation order appointing one or more representatives for a represented person who is under 19 years of age, the order takes effect on the date the represented person reaches 19 years of age.

Eligibility

40( 1) 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.

40( 2) 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.

40( 3) 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.

40( 4) 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.

Powers

41( 1) Subject to subsections (3), (4) and (5), a representative is authorized to exercise the powers specified in subsection (2) in relation to the matters specified in the representation order.

41( 2) 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.

41( 3) 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.

41( 4) 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.

41( 5) 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.

41( 6) A representative shall not delegate any of the representative’s powers under the representation order.

Powers and duties re information

42( 1) A representative may request information that is relevant to a matter specified in the representation order from any person.

42( 2) 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.

42( 3) 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.

42( 4) 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

42( 5) A representative shall not request any information or document that the representative is not entitled to request under subsection (1), (2) or (3).

42( 6) 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

Duties

43( 1) A representative shall act honestly and in good faith and shall exercise reasonable care.

43( 2) A representative shall not act for the representative’s own benefit or for the benefit of a person other than the represented person.

43( 3) 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.

43( 4) 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.

43( 5) 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.

Duties re decision-making

44( 1) 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

44( 2) 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.

44( 3) 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.

Decisions made by a representative

45( 1) 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.

45( 2) 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.

45( 3) 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.

Records

46 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.

Remuneration and expenses

47( 1) 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.

47( 2) A representative is entitled to be reimbursed for reasonable expenses incurred while exercising the representative’s powers and performing the representative’s duties.

Resignation and termination of appointment

48( 1) 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

48( 2) 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

Application for review of order

49( 1) The following persons may apply to the court for a review of a representation order:

(a) a represented person;

(b) a representative;

(d) an interested person who is 19 years of age or older.

49( 2) At any time, the court may order a representative to apply for a review of a representation order.

49( 3) 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.

49( 4) 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

49( 5) 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,

(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.

Application for directions re order

50( 1) A representative may apply to the court for directions in relation to a representation order.

50( 2) 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,

(b) authorizing a representative to exercise powers in relation to matters referred to in subsection 41(4) or (5), and

50( 3) 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.

50( 4) 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.

50( 5) When approved by the court, a new or amended will is for all purposes the will of the represented person.

Property subject of a specific gift – orders

51( 1) 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.

51( 2) 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.

PART 5

CAPACITY ASSESSMENTS

Definition of “assessor”

52 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,

(d) a member of a class of persons prescribed by regulation.

Capacity assessment and report

53( 1) A capacity assessment that is conducted for the purposes of this Act shall be conducted by an assessor in accordance with the regulations.

53( 2) 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.

53( 3) After completing a capacity assessment, an assessor shall prepare a capacity assessment report in the form prescribed by regulation.

53( 4) A capacity assessment report filed with the court for the purposes of an application under section 19, 32, 36 or 49 shall be dated no earlier than six months before the application is filed with the court, unless the court orders otherwise.

53( 5) 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.

Rights of a person for whom a capacity assessment is sought or conducted

54( 1) A person is entitled to refuse to undergo or to continue with a capacity assessment that is conducted for the purposes of this Act.

54( 2) 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

54( 3) A person who has undergone a capacity assessment is entitled to receive a copy of the capacity assessment report on request.

54( 4) 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.

Capacity assessment without person present

55 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.

Assessors – powers and duties re information

56( 1) 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.

56( 2) A person who receives a request for information referred to in subsection (1) shall provide the assessor with the information.

56( 3) An assessor shall not request any information that the assessor is not entitled to request under subsection (1).

56( 4) 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

PART 6

GENERAL

Procedure on applications

57 To the extent that they are not inconsistent with this Act and the regulations, the Rules of Court apply to applications under this Act.

Costs or expenses

58 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

Inconsistent provisions in authorizations or orders

59( 1) 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.

59( 2) 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.

59( 3) 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.

Authorizations made outside the Province

60 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.

Orders made outside the Province

61( 1) 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.

61( 2) 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.

61( 3) 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.

61( 4) 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.

Immunity

62 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.

Regulations

63 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);

(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);

(x) prescribing classes of persons for the purpose of paragraph (d) of the definition “assessor” in section 52;

(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.

PART 7

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AND CONDITIONAL AMENDMENTS,
REPEAL AND COMMENCEMENT

Committee of the estate deemed to be a representative

64( 1) A person who was appointed as a committee of the estate under the Infirm Persons Act, chapter I-8 of the Revised Statutes, 1973, and who held that office immediately before the commencement of this section shall be deemed to have been validly appointed as a representative with powers in relation to a represented person’s financial matters under a representation order made under this Act.

64( 2) The powers of a person referred to in subsection (1) are subject to any conditions and restrictions specified in the order appointing the person as a committee of the estate.

Committee of the person deemed to be a representative

65( 1) A person who was appointed as a committee of the person under the Infirm Persons Act, chapter I-8 of the Revised Statutes, 1973, and who held that office immediately before the commencement of this section shall be deemed to have been validly appointed as a representative with powers in relation to a represented person’s personal care matters under a representation order made under this Act.

65( 2) The powers of a person referred to in subsection (1) are subject to any conditions and restrictions specified in the order appointing the person as a committee of the person.

Person appointed under the Infirm Persons Act deemed to be a representative

66( 1) A person who was appointed to perform acts or make decisions on behalf of a person under paragraph 39(3)(a) of the Infirm Persons Act, chapter I-8 of the Revised Statutes, 1973, and who held that office immediately before the commencement of this section shall be deemed to have been validly appointed as a representative with powers in relation to a represented person’s financial matters, personal care matters or both under a representation order made under this Act.

66( 2) The powers of a person referred to in subsection (1) are subject to any conditions and restrictions specified in the order appointing the person to perform acts or make decisions.

Business Corporations Act

67( 1) Paragraph 13(3)(a.2) of the Business Corporations Act, chapter B-9.1 of the Acts of New Brunswick, 1981, is repealed and the following is substituted:

(a.2) to execute the office of executor, administrator, guardian of a minor’s estate or representative under the Supported Decision-Making and Representation Act;

67( 2) Paragraph 49(2)(b) of the Act is repealed and the following is substituted:

(b) a guardian, representative under the Supported Decision-Making and Representation Act, committee, trustee or curator representing a registered shareholder who is a minor, a represented person, an incompetent person or a missing person; or

Credit Unions Act

68 Paragraph 26(4)(b) of the Credit Unions Act, chapter 25 of the Acts of New Brunswick, 2019, is amended by striking out “committee of a mentally incompetent person” and substituting “representative under the Supported Decision-Making and Representation Act”.

Devolution of Estates Act

69( 1) Section 1 of the Devolution of Estates Act, chapter D-9 of the Revised Statutes, 1973, is amended by repealing the definition “lunatic”.

69( 2) Subsection 10(2) of the Act is amended by striking out “a lunatic” and “such lunatic” and substituting “a person who lacks the capacity to concur in the sale” and “the person who lacks capacity”, respectively.

69( 3) Section 12 of the Act is amended by striking out “a lunatic, with the approval of the committee of the lunatic, if any minor or lunatic” and substituting “a person for whom a representative has been appointed under the Supported Decision-Making and Representation Act, with the approval of the representative, if any minor or represented person”.

Enduring Powers of Attorney Act

70 Section 11 of the Enduring Powers of Attorney Act, chapter 30 of the Acts of New Brunswick, 2019, is amended

(a) in subsection (1)

( 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,”;

(b) by repealing subsection (2).

Regulation under the Family Law Act

71 Paragraph 21(e) of New Brunswick Regulation 2022-11 under the Family Law Act is repealed and the following is substituted:

(e) a representative appointed for the party under the Supported Decision-Making and Representation Act, if the disclosure relates to the powers and duties conferred by the appointment.

Judicature Act

72 Schedule B of the Judicature Act, chapter J-2 of the Revised Statutes, 1973, is amended

(a) by striking out

Infirm Persons Act

(b) by adding after

Support Enforcement Act

the following:

Supported Decision-Making and Representation Act

Regulation under the Legal Aid Act

73 Section 16 of New Brunswick Regulation 2017-12 under the Legal Aid Act is repealed and the following is substituted:

Representative

16 An employee may require that an application for legal aid services for a person who is under 19 years of age, a person for whom a representative under the Supported Decision-Making and Representation Act is appointed or a patient as defined in the Mental Health Act be made on that person’s behalf by a parent, guardian, relative, friend, committee, representative or the Public Trustee appointed under the Public Trustee Act.

Loan and Trust Companies Act

74( 1) Subsection 1(1) of the Loan and Trust Companies Act, chapter L-11.2 of the Acts of New Brunswick, 1987, is amended

(a) in the definition “corporation” by striking out “estate or committee of a mentally incompetent person’s estate” and substituting “estate, committee of a mentally incompetent person’s estate or representative under the Supported Decision-Making and Representation Act”;

(b) in the definition “provincial company” by striking out “estate or committee of a mentally incompetent person’s estate” and substituting “estate, committee of a mentally incompetent person’s estate or representative under the Supported Decision-Making and Representation Act”;

(c) in the definition “trust company” by striking out “estate or committee of a mentally incompetent person’s estate” and substituting “estate, committee of a mentally incompetent person’s estate or representative under the Supported Decision-Making and Representation Act”.

74( 2) Subsection 11(2) of the Act is amended by striking out “estate or committee of a mentally incompetent person’s estate” and substituting “estate or representative under the Supported Decision-Making and Representation Act”.

74( 3) Paragraph 29(2)(b) of the Act is amended by striking out “estate or committee of a mentally incompetent person’s estate” and substituting “estate, committee of a mentally incompetent person’s estate or representative under the Supported Decision-Making and Representation Act”.

74( 4) Section 54 of the Act is amended

(a) in subsection (1) by striking out “or committee” and substituting “or representative”;

(b) in subsection (2) by striking out “or committee” and substituting “or representative”;

(d) in subsection (5) by striking out “or committee” and substituting “or representative”.

74( 5) Subsection 75(5) of the Act is repealed and the following is substituted:

75( 5) Where the holder of an option or right issued under subsection (3) dies, becomes bankrupt or has a representative appointed under the Supported Decision-Making and Representation Act, the option or right vests in the administrator of the holder’s estate, trustee in bankruptcy or appointed representative for a period of two years after the date of death, bankruptcy or appointment, at the end of which period the option or right lapses.

74( 6) Paragraph 210(2)(b) of the Act is repealed and the following is substituted:

(b) guardian of a minor’s estate in New Brunswick or representative under the Supported Decision-Making and Representation Act, or

Marital Property Act

75 Subsection 38(2) of the Marital Property Act, chapter 107 of the Revised Statutes, 2012, is repealed and the following is substituted:

38( 2) Subject to the approval of the Court, the following persons may enter into a domestic contract or give any waiver or consent under this Act on behalf of a person who does not have the capacity to do so:

(a) the person’s representative appointed under the Supported Decision-Making and Representation Act; or

(b) the Public Trustee appointed under the Public Trustee Act, if the representative is the spouse of the person or if the person does not have a representative.

Mental Health Act

76( 1) Section 8.6 of the Mental Health Act, chapter M-10 of the Revised Statutes, 1973, is amended

(a) in subsection (1) by adding after paragraph (b) the following:

(b.01) the patient’s decision-making supporter or representative under the Supported Decision-Making and Representation Act;

(b) in subsection (2) by adding after paragraph (b) the following:

(b.01) the patient’s decision-making supporter or representative under the Supported Decision-Making and Representation Act;

76( 2) Subsection 36(6) of the Act is repealed and the following is substituted:

36( 6) This section does not apply to a patient for whom a representative with powers in relation to the patient’s financial matters has been appointed under the Supported Decision-Making and Representation Act.

76( 3) Section 37 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

37( 1) Even if a person other than the Public Trustee has been appointed as a representative under the Supported Decision-Making and Representation Act with powers in relation to the patient’s financial matters, The Court of King’s Bench of New Brunswick may, at any time, on the application of the Public Trustee, appoint the Public Trustee as committee of the estate of the patient instead of the person appointed as representative under that Act.

(b) by repealing subsection (2) and substituting the following:

37( 2) If, at any time, a person other than the Public Trustee is appointed as a representative under the Supported Decision-Making and Representation Act with powers in relation to the patient’s financial matters, the Public Trustee ceases to be the committee of the estate under this Act and shall account for and transfer to the representative so appointed the estate of the patient that has come into the Public Trustee’s hands.

37( 3) An order under the Supported Decision-Making and Representation Act for the appointment of a person other than the Public Trustee as representative of a patient with powers in relation to the patient’s financial matters shall not be made without the consent of the Public Trustee unless seven days notice of the application has been given to the Public Trustee.

(d) in subsection (4) by striking out “another committee” and substituting “a representative under the Supported Decision-Making and Representation Act”.

76( 4) Section 44 of the Act is amended by striking out “committee” and substituting “representative or committee”.

Partnership Act

77 Paragraph 36(a) of the Partnership Act, chapter P-4 of the Revised Statutes, 1973, is amended by striking out “his committee” and substituting “the partner’s representative under the Supported Decision-Making and Representation Act”.

Personal Health Information Privacy and Access Act

78( 1) Paragraph 25(1)(b) of the Personal Health Information Privacy and Access Act, chapter P-7.05 of the Acts of New Brunswick, 2009, is repealed and the following is substituted:

(b) a decision-making supporter or representative appointed for the individual under the Supported Decision-Making and Representation Act, if the giving, withholding or withdrawing the consent relates to the powers and duties of the decision-making supporter or representative, as the case may be;

78( 2) Subsection 40(2) of the Act is amended

(a) by repealing paragraph (c) and substituting the following:

(c) to a proposed litigation guardian, committee, decision-making supporter or representative under the Supported Decision-Making and Representation Act or a proposed legal representative of the individual for the purpose of having the person appointed as a litigation guardian, committee, decision-making supporter, representative or legal representative,

(b) in paragraph (d) by adding after “committee” the following “, representative under the Supported Decision-Making and Representation Act”.

Presumption of Death Act

79 Subsection 3(4) of the Presumption of Death Act, chapter 110 of the Revised Statutes, 2012, is repealed and the following is substituted:

3( 4) The powers and duties of the Court and a committee with respect to the estate of an absentee are the same, with the necessary modifications, as those of a court and a representative respectively under the Supported Decision-Making and Representation Act.

Probate Court Act

80( 1) Section 1 of the Probate Court Act, chapter P-17.1 of the Acts of New Brunswick, 1982, is amended in the definition “persons beneficially interested” by striking out “committee appointed under the Infirm Persons Act” and substituting “representative appointed under the Supported Decision-Making and Representation Act”.

80( 2) The heading “Notice to guardian, committee and others before bond or security cancelled” preceding section 63 of the Act is amended by striking out “committee” and substituting “representative”.

80( 3) Section 63 of the Act is repealed and the following is substituted:

63 If an administrator has produced evidence to the satisfaction of the Court that the debts of the deceased have been paid and the residue of the estate has been duly distributed, the Court may make an order directing any bond or other security furnished by the administrator to be delivered up to be cancelled, but if a minor or a person for whom a representative has been appointed under the Supported Decision-Making and Representation Act was or is entitled to a part of the estate under the distribution, the order shall not be made until after such notice as the Court directs has been given to the guardian or the representative, as the case may be, and to any person beneficially interested in the estate.

Regulation under the Probate Court Act

81( 1) Clause (b) of Rule 3.08(9) of New Brunswick Regulation 84-9 under the Probate Court Act is repealed and the following is substituted:

(b) the Public Trustee or the representative appointed under the Supported Decision-Making and Representation Act.

81( 2) Form 3M of the Regulation is amended by striking out “have not been found to be mentally incompetent or incapacitated” and substituting “do not have representatives appointed for them under the Supported Decision-Making and Representation Act”.

Public Trustee Act

82( 1) Subsection 6(2) of the Public Trustee Act, chapter P-26.5 of the Acts of New Brunswick, 2005, is amended

(a) by repealing paragraph (a) and substituting the following:

(a) act as a representative under the Supported Decision-Making and Representation Act,

(b) by repealing paragraph (b);

(c) in paragraph (b.1) by striking out “continue to act, perform acts or make decisions on behalf of a deceased person for whom the Public Trustee had authority to act or make decisions under the Infirm Persons Act,” and substituting “continue to act as a representative under the Supported Decision-Making and Representation Act on behalf of a deceased person”.

82( 2) Section 8 of the Act is amended

(a) in the portion preceding paragraph (a) by striking out “the committee of a person’s estate under the Infirm Persons Act or the Mental Health Act,” and substituting “a person’s representative under the Supported Decision-Making and Representation Act or the committee of a person’s estate under the Mental Health Act,”;

(b) in paragraph (a) by striking out “committee of the person’s estate” and substituting “the person’s representative or the committee of the person’s estate”;

(c) in paragraph (b) by striking out “committee of the person’s estate” and substituting “the person’s representative or the committee of the person’s estate”.

82( 3) Section 18 of the Act is amended by striking out “trustee, committee” and substituting “trustee, committee, representative”.

Right to Information and Protection of Privacy Act

83 Paragraph 79(b) of the Right to Information and Protection of Privacy Act, chapter R-10.6 of the Acts of New Brunswick, 2009, is repealed and the following is substituted:

(b) by a decision-making supporter or representative appointed for the individual under the Supported Decision-Making and Representation Act, if the exercise of the right or power relates to the powers and duties of the decision-making supporter or representative, as the case may be,

Regulation under the Small Claims Act

84( 1) Subsection 50(1) of New Brunswick Regulation 2012-103 under the Small Claims Act is amended

(a) by repealing paragraph (p) and substituting the following:

(p) on a person for whom a representative has been appointed under the Supported Decision-Making and Representation Act, by leaving a copy of it with the representative;

(b) by repealing paragraph (q) and substituting the following:

(q) on a person who lacks the capacity to make decisions with respect to the proceeding but for whom a representative has not been appointed, by leaving a copy of it with the person and with the person in whose care the person resides; and

84( 2) Subsection 54(1) of the Regulation is amended

(a) by repealing paragraph (c) and substituting the following:

(c) a person for whom a representative has been appointed under the Supported Decision-Making and Representation Act, by the representative,

(b) by repealing paragraph (d) and substituting the following:

(d) a person who lacks the capacity to make decisions with respect to the proceeding but for whom a representative has not been appointed, by a litigation guardian, and

84( 3) Form 20 of the Regulation is amended by striking out “a person declared mentally incompetent” and substituting “a person for whom a representative has been appointed under the Supported Decision-Making and Representation Act”.

84( 4) Form 21 of the Regulation is amended by striking out “mentally incompetent or incapable of managing his or her own affairs” and substituting “lacks capacity to make decisions with respect to the proceeding”.

Trustees Act

85( 1) Section 1 of the Trustees Act, chapter 21 of the Acts of New Brunswick, 2015, is amended

(a) by repealing the definition “committee of the estate”;

(b) by repealing the definition “incompetency” and substituting the following:

“incompetency” means the condition of mind or physical incapacity of a mentally incompetent person as defined in the Interpretation Act. (incapacité)

“representative” means a representative appointed under the Supported Decision-Making and Representation Act with powers in relation to a person’s financial matters. (représentant)

85( 2) Paragraph 48(b) of the Act is repealed and the following is substituted:

(b) if a representative has been appointed for the incompetent person, to the representative.

85( 3) Subsection 66(3) of the Act is amended in the portion preceding paragraph (a) by striking out “committee of the estate” and substituting “representative”.

85( 4) Section 91 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

91( 1) If a beneficiary is a person for whom a representative has been appointed, the representative represents the beneficiary for the purposes of this Act, subject to the authority of the court under the Supported Decision-Making and Representation Act.

(b) in subsection (2) in the portion preceding paragraph (a) by striking out “committee of the estate” and substituting “representative”.

Conditional amendment – Fiduciaries Access to Digital Assets Act

86 If the Bill entitled Fiduciaries Access to Digital Assets Act, introduced in the second session of the 60th Legislature, receives Royal Assent, on the commencement of this section, section 1 of the Fiduciaries Access to Digital Assets Act is amended in the definition “representative” by repealing paragraph (a) and substituting the following:

(a) a person appointed as a representative under the Supported Decision-Making and Representation Act with powers in relation to financial matters,

Conditional amendment – Missing Persons Act

87 If Bill 5, introduced in the second session of the 60th Legislature and entitled Missing Persons Act, receives Royal Assent, on the commencement of this section,

(a) section 1 of the Missing Persons Act is amended in the definition “vulnerable person” by repealing paragraph (a) and substituting the following:

(a) a person for whom a decision-making supporter or representative is appointed under the Supported Decision-Making and Representation Act,

; and

(b) paragraph 7(2)(d) of the General Regulation – Missing Persons Act is repealed and the following is substituted:

(d) the decision-making supporter or representative with powers in relation to personal care matters appointed for the vulnerable person under the Supported Decision-Making and Representation Act;

Repeal of Infirm Persons Act

88 The Infirm Persons Act, chapter I-8 of the Revised Statutes, 1973, is repealed.

Commencement

89 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.