Acts and Regulations

2023-66 - General

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Current to 1 January 2024
NEW BRUNSWICK
REGULATION 2023-66
under the
Supported Decision-Making and Representation Act
(O.C. 2023-249)
Filed December 14, 2023
Under section 63 of the Supported Decision-Making and Representation Act, the Lieutenant‑Governor in Council makes the following Regulation:
Citation
1This Regulation may be cited as the General Regulation – Supported Decision-Making and Representation Act.
Definitions
2The following definitions apply in this Regulation.
“Act” means the Supported Decision-Making and Representation Act. (Loi)
“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. (personne représentée)
“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. (personne accompagnée)
Use of electronic means of communication – decision-making assistance authorizations
3(1)The requirements in subsection 6(7) of the Act for signing and dating a decision-making assistance authorization in the presence of another person may be satisfied through an electronic means of communication if all persons are able to see, hear and communicate with one another in real time to the same extent as if the persons were communicating in person in the same location.
3(2)For the purposes of subsection 6(9) of the Act,
(a) identical copies of a decision-making assistance authorization signed and dated in counterpart shall together constitute the decision-making assistance authorization, and
(b) counterparts of a decision-making assistance authorization are deemed to be identical even if there are minor, non-substantive differences in the format or layout of the counterparts.
Records – decision-making assistants
4For the purposes of paragraph 14(a) of the Act, a decision-making assistant shall keep a record of the money received by the decision-making assistant as reimbursement for expenses that contains the following information for each reimbursement:
(a) a description of the expenses;
(b) the amount of money received; and
(c) the date the money was received.
Content of affidavits – applications for supported decision-making orders
5(1)The affidavit of an applicant for a supported decision-making order shall contain the following statements and information:
(a) the name, address and date of birth of the applicant;
(b) the name, address and date of birth of the supported person;
(c) the relationship of the applicant to the supported person;
(d) the names and addresses of
(i) any current representative, decision-making supporter or decision-making assistant of the supported person,
(ii) any attorney appointed by the supported person in an enduring power of attorney,
(iii) any spouse or common-law partner of the supported person,
(iv) any parent of the supported person, and
(v) any child or sibling of the supported person who is 19 years of age or older;
(e) information about
(i) the current living arrangements of the supported person,
(ii) the supported person’s capacity to make decisions without assistance,
(iii) the supported person’s capacity to make decisions with assistance and the types of assistance that the supported person requires to make those decisions,
(iv) the types of assistance that are available to the supported person,
(v) the supported person’s ability to make decisions with the applicant through a supported decision-making process,
(vi) any measures that are less intrusive than appointing a supported decision-maker for the supported person that have been considered or implemented,
(vii) the nature of the relationship between the applicant and the supported person, including whether the relationship is one characterized by trust, and
(viii) the applicant’s ability and availability to exercise the powers and perform the duties of a decision-making supporter; and
(f) if the applicant is seeking powers in relation to financial matters,
(i) a statement indicating that, to the best of the applicant’s knowledge, the information provided in the financial summary is accurate, and
(ii) a statement indicating that, to the best of the applicant’s knowledge, the information provided in the financial summary is complete or, if not complete, a statement explaining why the information is incomplete.
5(2)The affidavit of a person who is not the applicant but who is a proposed decision-making supporter under an application for a supported decision-making order shall contain the following information:
(a) the name, address and date of birth of the proposed decision-making supporter;
(b) the relationship of the proposed decision-making supporter to the supported person; and
(c) information about
(i) the nature of the relationship between the proposed decision-making supporter and the supported person, including whether the relationship is one characterized by trust, and
(ii) the proposed decision-making supporter’s ability and availability to exercise the powers and perform the duties of a decision-making supporter.
5(3)An affidavit referred to in subsection (2) may contain information about the following:
(a) the current living arrangements of the supported person;
(b) the supported person’s capacity to make decisions without assistance;
(c) the supported person’s capacity to make decisions with assistance and the types of assistance that the supported person requires to make those decisions;
(d) the types of assistance that are available to the supported person;
(e) the supported person’s ability to make decisions with the proposed decision-making supporter through a supported decision-making process; and
(f) any measures that are less intrusive than appointing a supported decision-maker for the supported person that have been considered or implemented.
Restrictions on powers – decision-making supporters
6(1)For the purposes of paragraph 24(4)(d) of the Act, unless expressly authorized to do so in the supported decision-making order, a decision-making supporter shall not exercise powers in relation to the making, amending or revoking of a beneficiary designation of a supported person in an instrument other than a will.
6(2)For the purposes of subsection 24(5) of the Act, unless expressly authorized to do so in the supported decision-making order, a decision-making supporter shall not exercise powers in relation to
(a) the sterilization of a supported person,
(b) the removal of tissue from a supported person’s body for implantation in another person’s body or for medical research or education, and
(c) the participation of the supported person in medical research.
Records – decision-making supporters
7For the purposes of subparagraph 29(a)(i) of the Act, a decision-making supporter shall keep the following records:
(a) a record of the decisions made with the supported person that relate to the supported person’s health care, accommodation or support services that contains the date of each decision and the reasons for the decision;
(b) a record of the money received by the decision-making supporter as reimbursement for expenses that contains the following information for each reimbursement:
(i) a description of the expenses;
(ii) the amount of money received; and
(iii) the date the money was received; and
(c) a record of each gift, donation, loan or financial support given out of the property of the supported person as a result of a decision made with the supported person that contains the following information with respect to the gift, donation, loan or financial support:
(i) a description;
(ii) the reasons for it;
(iii) the name of the recipient; and
(iv) the amount of money or the value.
Content of affidavits – applications for representation orders
8(1)Subject to subsections (2) and (3), the affidavit of an applicant for a representation order shall contain the following statements and information:
(a) the name, address and date of birth of the applicant;
(b) the name, address and date of birth of the represented person;
(c) the relationship of the applicant to the represented person;
(d) the names and addresses of
(i) any current representative, decision-making supporter or decision-making assistant of the represented person,
(ii) any attorney appointed by the represented person in an enduring power of attorney,
(iii) any spouse or common-law partner of the represented person,
(iv) any parent of the represented person, and
(v) any child or sibling of the represented person who is 19 years of age or older;
(e) information about
(i) the current living arrangements of the represented person,
(ii) the nature of the relationship between the applicant and the represented person, including whether the relationship is one characterized by trust, and
(iii) the applicant’s ability and availability to exercise the powers and perform the duties of a representative; and
(f) if the applicant is seeking powers in relation to financial matters,
(i) a statement indicating that, to the best of the applicant’s knowledge, the information provided in the financial summary is accurate, and
(ii) a statement indicating that, to the best of the applicant’s knowledge, the information provided in the financial summary is complete or, if not complete, a statement explaining why the information is incomplete.
8(2)Despite paragraph (1)(f), if an application for a representation order made by the Public Trustee is not accompanied by a financial summary, the affidavit is not required to contain the statements in paragraph (1)(f).
8(3)If the information is within the personal knowledge of the applicant, the affidavit of an applicant for a representation order shall contain information about the following:
(a) the represented person’s capacity to make decisions without assistance;
(b) the represented person’s capacity to make decisions with assistance and the types of assistance that the represented person requires to make those decisions;
(c) the types of assistance that are available to the represented person;
(d) the represented person’s ability to make decisions with the applicant through a supported decision-making process; and
(e) any measures that are less intrusive than appointing a representative for the represented person that have been considered or implemented.
8(4)The affidavit of a person who is not the applicant for a representation order but who is a proposed representative under the application shall contain the following information:
(a) the name, address and date of birth of the proposed representative;
(b) the relationship of the proposed representative to the represented person; and
(c) information about
(i) the nature of the relationship between the proposed representative and the represented person, including whether the relationship is one characterized by trust, and
(ii) the proposed representative’s ability and availability to exercise the powers and perform the duties of a representative.
8(5)An affidavit referred to in subsection (4) may contain information about the following:
(a) the current living arrangements of the represented person;
(b) the represented person’s capacity to make decisions without assistance;
(c) the represented person’s capacity to make decisions with assistance and the types of assistance that the represented person requires to make those decisions;
(d) the types of assistance that are available to the represented person;
(e) the represented person’s ability to make decisions with the proposed representative through a supported decision-making process; and
(f) any measures that are less intrusive than appointing a representative for the represented person that have been considered or implemented.
Restrictions on powers – representatives
9(1)For the purposes of paragraph 41(4)(d) of the Act, unless expressly authorized to do so in the representation order, a representative shall not exercise powers in relation to the making, amending or revoking of a beneficiary designation of a represented person in an instrument other than a will.
9(2)For the purposes of subsection 41(5) of the Act, unless expressly authorized to do so in the representation order, a representative shall not exercise powers in relation to
(a) the sterilization of a represented person,
(b) the removal of tissue from a represented person’s body for implantation in another person’s body or for medical research or education, and
(c) the participation of the represented person in medical research.
Records – representatives
10For the purposes of subparagraph 46(a)(i) of the Act, a representative shall keep the following records:
(a) a record of the decisions made by the representative on behalf of the represented person that relate to the represented person’s health care, accommodation or support services that contains the date of each decision and the reasons for the decision;
(b) a record of the money received by the representative as remuneration for acting as a representative that contains the following information:
(i) the rate of remuneration;
(ii) the amount of money received; and
(iii) the date the money was received;
(c) a record of the money received by the representative as reimbursement for expenses that contains the following information for each reimbursement:
(i) a description of the expenses;
(ii) the amount of money received; and
(iii) the date the money was received; and
(d) a record of each gift, donation, loan or financial support given out of the property of the represented person as a result of a decision made by the representative on behalf of the represented person that contains the following information with respect to the gift, donation, loan or financial support:
(i) a description;
(ii) the reasons for it;
(iii) the name of the recipient; and
(iv) the amount of money or the value.
Capacity assessment
11(1)An assessor may only conduct a capacity assessment for the purposes of the Act if the assessor is satisfied that the person who is to undergo the capacity assessment does not have a temporary condition that may affect the person’s capacity.
11(2)An assessor may make a determination referred to in subsection (1) on the basis of information obtained from another person.
11(3)An assessor shall take reasonable steps to ensure that a capacity assessment is conducted at a time and in the circumstances in which the person who is to undergo the assessment is likely to be able to demonstrate the person’s capacity.
11(4)Before conducting a capacity assessment, the assessor shall advise the person who is to undergo the assessment of the following:
(a) the reason for the assessment and the nature of the assessment; and
(b) the person’s rights under section 54 of the Act.
11(5)When conducting a capacity assessment, the assessor shall take reasonable steps to obtain the information required to complete the capacity assessment report, including
(a) meeting with, obtaining information from and making observations about the person who is undergoing the assessment,
(b) obtaining information from other persons, including
(i) the person who requested the assessment,
(ii) family members of the person who is undergoing the assessment, and
(iii) persons who provide health care services or support services to the person who is undergoing the assessment, and
(c) reviewing the information available to the assessor.
11(6)If a person who is undergoing a capacity assessment chooses to have a person accompany them during the assessment, the accompanying person shall comply with the directions of the assessor, and if the person does not, the assessor may direct the person to leave the assessment.
11(7)Despite paragraph (5)(a), the assessor may conduct a capacity assessment without the person in respect of whom the assessment is to be conducted if the requirements of section 55 of the Act are met.
Forms
12(1)A decision-making assistance authorization referred to in section 6 of the Act shall be in Form 1.
12(2)A financial summary referred to in sections 19 and 36 of the Act shall be in Form 2.
12(3)A capacity assessment report referred to in section 53 of the Act shall be in Form 3.
Commencement
13This Regulation comes into force on January 1, 2024.
N.B. This Regulation is consolidated to December 14, 2023.