BILL 55

An Act to Amend the Infirm Persons Act

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

1 Section 1 of the Infirm Persons Act, chapter I-8 of the Revised Statutes, 1973, is amended

(a) by adding the following definitions in alphabetical order:

"attorney for personal care" means a person appointed as an attorney by a power of attorney for personal care;

"power of attorney for personal care" means a power of attorney under section 40;

"principal" means a person who gives a power of attorney for personal care.

(b) in the definition "mental incompetency" by striking out the period at the end of the definition and substituting a semicolon.

2 Section 5 of the Act is amended

(a) in subsection (3) by striking out "next of kin" and substituting "next of kin, of the attorney appointed by a power of attorney, if any";

(b) in subsection (4) by striking out "next of kin" and substituting "next of kin, the attorney appointed by a power of attorney".

3 Subsection 18(1) of the French version of the Act is amended by striking out "possédent" and substituting "possèdent".

4 The heading "APPLICATION OF ACT TO PERSONS NOT MENTALLY INCOMPETENT, BUT INCAPACITATED BY INFIRMITY" preceding section 39 of the English version of the Act is repealed and the following is substituted:

APPLICATION OF ACT TO PERSONS NOT DECLARED MENTALLY INCOMPETENT, BUT INCAPACITATED BY INFIRMITY

5 Section 39 of the Act is amended

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

39(1) The provisions of this Act shall apply to a person, not declared to be mentally incompetent, with regard to whom it is proven to the satisfaction of the court that the person is, through mental or physical infirmity arising from disease, age or other cause, or by reason of habitual drunkenness or the use of drugs,

(a) incapable of managing some or all of his or her affairs or providing for their management, or

(b) incapable of providing for some or all aspects of his or her personal care.

(b) by repealing subsection (2);

(c) by repealing subsection (3) and substituting the following:

39(3) When subsection (1) applies, the court may order the appointment of

(a) a person who shall be authorized to perform any acts or make any decisions specified in the order on behalf of the person to whom the order relates, or

(b) a committee of the estate, a committee of the person or a committee of the estate and person to act on behalf of the person to whom the order relates.

(d) by adding after subsection (3) the following:

39(3.1) An order under subsection (3) may require that the committee or the person authorized to act provide security.

(e) by repealing subsection (4) and substituting the following:

39(4) A person appointed under paragraph (3)(a) shall be subject to the jurisdiction and authority of the court as if the person were a committee.

(f) by repealing subsection (5) and substituting the following:

39(5) Sections 11 and 11.1 shall apply to the cases provided for by paragraph (1)(a) and the person in respect of whom the order is made.

6 The Act is amended by adding after section 39 the following:

POWER OF ATTORNEY FOR PERSONAL CARE

40(1) In a power of attorney under seal, a person may appoint any other person as an attorney to make some or all personal care decisions on behalf of the person in the circumstances set out in the power of attorney.

40(2) A power of attorney under subsection (1) shall

(a) be signed by the principal, or signed in the name of the principal by another person in the presence and at the direction of the principal, and

(b) be witnessed by an adult other than the attorney.

41 A power of attorney for personal care and a power of attorney respecting property matters, including a power of attorney under subsection 58.2(1) of the Property Act, may be given in one document.

42 Subject to the express terms of the power of attorney for personal care, an attorney for personal care has the same obligations towards the principal as a committee of the person appointed by the court.

43(1) If the court appoints a committee of the person for a principal, the authority conferred upon the attorney for personal care terminates.

43(2) If the court makes an order under paragraph 39(3)(a), the authority conferred upon an attorney for personal care terminates or is superseded to the extent of the order.

43(3) Subsections (1) and (2) do not limit any other means by which the authority of an attorney for personal care may be terminated.

43(4) If a power of attorney for personal care and a power of attorney respecting property matters are given in one document, the termination of the authority of the donee under section 58.3 of the Property Act does not affect the authority of the attorney for personal care.

44 A power of attorney under seal that contains provisions dealing with personal care matters and that was given before the commencement of section 40 is valid if it meets the requirements of subsection 40(2).

7(1) Subsection 1(1) of the Mental Health Act, chapter M-10 of the Revised Statutes, 1973, is amended in the definition "nearest relative" by adding after paragraph (a) the following:

(a.1) if none, the attorney for personal care under the Infirm Persons Act, or

7(2) Section 8.6 of the Act is amended

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

(b.1) the patientís attorney for personal care under the Infirm Persons Act;

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

(b.1) the patientís attorney for personal care under the Infirm Persons Act;

8 Clause 71.03(1)(b) of the Rules of Court of New Brunswick, New Brunswick Regulation 82-73 under the Judicature Act and the Provincial Offences Procedure Act, is repealed and the following is substituted:

(b) the spouse, next-of-kin, committee, if any, and attorney appointed by a power of attorney, if any, of the alleged infirm person, who have not consented to the granting of the relief requested in the application.

EXPLANATORY NOTES

Section 1

(a) The definitions "attorney for personal care", "power of attorney for personal care" and "principal" are added.

(b) Consequential amendment.

Section 2

(a) The existing provision is as follows:

5(3) The Notice of Application shall disclose the names and place of residence of the alleged mentally incompetent person, of his spouse, if any, of his next of kin, and of the committee of his estate and person, if any, as far as the same can be ascertained.

(b) The existing provision is as follows:

5(4) The court shall make such order as may seem expedient for notice of such application and service thereof upon the alleged mentally incompetent person, his or her wife or husband, the next of kin and committee.

Section 3

A typographical error is corrected.

Section 4

The English and French versions are made consistent.

Section 5

(a) The existing provision is as follows:

39(1) The provisions of this Act relating to management and administration shall apply to a person, not declared to be mentally incompetent, with regard to whom it is proved to the satisfaction of the court that he is, through mental or physical infirmity arising from disease, age, or other cause, or by reason of habitual drunkenness or the use of drugs, incapable of managing his affairs, or providing for their management.

(b) The existing provision is as follows:

39(2) The provisions of this section shall apply although the person is not a mentally incompetent person.

(c) The existing provision is as follows:

39(3) Such of the powers as by this Act are made exercisable by the committee of the estate under order of the court shall be exercised in the cases provided for by subsection (1) by such person, in such manner, and with or without security, as the court may order, and any such order may confer upon the person therein named authority to do any specified act or exercise any specified power, or may confer a general authority to exercise on behalf of the person to whom the order relates until further order, all or any such powers without further application to the court.

(d) New provision.

(e) The existing provision is as follows:

39(4) A person appointed to do any such act or exercise any such power shall be subject to the jurisdiction and authority of the court as if he were the committee of the estate of a mentally incompetent person so declared.

(f) The existing provision is as follows:

39(5) Sections 11 and 11.1 shall apply to the cases provided for by subsection (1), and the person in respect of whom the order is made.

Section 6

New provisions.

Section 7

Consequential amendments to the Mental Health Act.

Section 8

Consequential amendment to the Rules of Court.