The Supported Decision-Making and Representation Act

In December 2022, after many years of advocacy by Inclusion NB, the Supported Decision-Making and Representation Act (Bill 20) was passed unanimously in the New Brunswick legislature.

The Supported Decision-Making and Representation Act represents a significant shift in adult decision-making laws in New Brunswick and is deeply rooted in a human rights approach. When proclaimed into law later this year, it will replace the very outdated Infirm Persons Act. The new legislation will ensure the right for people with a disability to make their own decisions based on their wishes and preferences, even if they need some support.

It’s an important time in our province. On January 1, 2024, The Supported Decision-Making and Representation Act was proclaimed into law. This legislation represents a significant shift in how we think about decision making rights, self-determination and legal mechanisms for assisting people who may require help with making decisions.

This Act ensures that New Brunswickers, including seniors and adults with a disability, can make their own decisions – big and small – about their own lives.

This can happen with support, if needed, and most importantly, will result in having those decisions recognized under the law.

This approach – true to the principles of inclusion – has been many years in the making. Protecting the autonomy and dignity of everyone to participate in their decision-making is the very cornerstone of an independent and full life.

Next steps:

  • Inclusion NB is developing training around supported decision-making and the new Act for various audiences, including self-advocates, families, lawyers, and others.
  • Inclusion NB is exploring funding to create training for those authorized to complete capacity assessments (physicians, nurse practitioners, and psychologists) under the new Act.

Frequently Asked Questions (FAQ)

The Supported Decision-Making and Representation Act (SDMRA) is a new law that governs decision-making in New Brunswick. It protects the rights and dignity of people who need support to make decisions, such as New Brunswickers with a disability and seniors. The new law says that when a person makes a decision with support, it is still considered to be their decision.

This legislation makes it possible for people with more significant developmental and cognitive disabilities, who would otherwise not be seen as being able to make decisions with legal consequences, to make legally valid decisions.

For people who experience challenges making decisions on their own, New Brunswick’s Supported Decision-Making and Representation Act (SDMRA) provides different options to help. While some people get the support they need from family and friends, others may need to pursue a legal option to ensure their financial and personal care decisions are recognized under the Act.

The SDMRA recognizes different ways a person who is 19 or older can make or guide their own decisions. These are:

  • making decisions independently or with informal assistance as may be needed
  • through a decision-making assistance authorization
  • through a supported decision-making order

There is also a last resort option under the Act – a “representation order” – when the court determines that a person is unable to make or guide their own decisions through any of these options.

Supported decision-making is a new option under the Act where people are assisted or supported to make their own decisions with help from people they know and trust. Assistants or supporters help the person understand information related to a decision and the potential consequences of the decision. They do not make decisions on behalf of the person they are supporting. In some situations, decisions are made using a shared process where people work together to make decisions based on the wishes and preferences of the person being supported. A person’s wishes and preferences are at the centre of all decisions that concern them.

Many people may already be making decisions through informal arrangements, and the new Act does not take away or make these arrangements less valid.

A legal option may be required when a person (or the person who helps them) is having trouble dealing with things like banks or government agencies. In some circumstances, a person may have more difficulty understanding information about decisions and their consequences. A decision-making assistance authorization or a supported decision-making order can help to address this.

For people who require a formal arrangement, the Act provides different options:

1. The appointment of a decision-making assistant through a decision-making assistance authorization.

This is someone you choose to help you understand information, explore your options, and/or communicate your decisions. This is the least intrusive decision-making option under the SDMRA. You will need to a lawyer a to make a decision-making assistance authorization.

2. The court can appoint a decision-making supporter through a supported decision-making order.

This is more complex than a decision-making assistance authorization. It involves a formal capacity assessment and other legal steps. A decision-making supporter works closely with a person to help them make decisions through a supported decision-making process. This option is designed for individuals who face significant challenges in decision-making and need ongoing, structured support.

There is also third option available as a last resort. If a court determines that a person is unable to make or guide their own decisions, they are appointed a representative. This person becomes a substitute decision-maker and has the authority to make decisions on behalf of another person, based on the wishes and preferences of that person to the greatest extent possible.

You can learn more here:

Yes. You will need a lawyer to pursue any legal option under the SDMRA. This includes a decision-making assistance authorization, a supported decision-making order, and a representation order.

To find a lawyer who has knowledge of and experience with the new Act, you can visit the Law Society OF NB.

The Public Legal Education & information Service of New Brunswick (PLEIS-NB) also has resources that may be helpful, and they can answer questions about the law in New Brunswick, legal procedures, legal terms, and the court system.

(506) 453-5369

info@legalinfonb.ca

Legal Information Line

For a supported decision-making order or a representation order, the person requiring support will need to have a capacity assessment done by a medical practitioner (doctor), a nurse practitioner, or a psychologist. An application for a supported decision-making order or a representation order will go before a judge.

Capacity assessments are conducted under the SDMRA when someone is planning to apply to the court for an order appointing them as a decision-making supporter or representative for another person. A capacity assessor’s role is to do an assessment and complete a report with information about the person’s ability to make decisions with the assistance that is available. The report is made using a form called a capacity assessment report (Form 3).

You will need to pay your lawyer for their time, and you will need to pay the capacity assessor to conduct the capacity assessment. They will determine their fees.

New Brunswick Legal Aid Services Commission will assist with court applications for the appointment of a decision-making supporter to people who meet the financial requirements.

You can visit Legal Aid NB for more information or to speak with someone from Legal Aid in your area.

Inclusion NB has created resources to provide more information about the SDMRA and the options available to people for making decisions with assistance or support.

This course is designed for individuals and families looking to better understand the changes to decision-making legislation in New Brunswick, how these changes impact individuals and their families, and the options available for people who may require support with decision-making.

The course covers 4 key components:

  1. The key principles of supported decision-making;
  2. The different ways for a person to make legally valid decisions;
  3. Supporting individuals and their families through the legal process, including capacity assessments; and
  4. Building a plan for you and your family.

To access the course, families can visit the Inclusive Communities Institute (ICI). This is available to families at no cost. We would like to thank the New Brunswick Department of Education and Early Childhood Development for making this possible.

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