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The Vulnerable Persons Living with a Mental Disability Act
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Substitute Decision Making
What is a substitute
decision maker?
A substitute decision maker is an individual appointed
by the Vulnerable Persons' Commissioner to make decisions for
a vulnerable person who is unable to make certain decisions
for him or her self. A substitute decision maker has the legal
authority to make decisions for the vulnerable person
in those specific areas in which he or she has been given power
by the Commissioner.
When is a substitute decision maker
appointed?
A substitute decision maker may be appointed to
make decisions when a vulnerable person has one or more decisions
to make and is unable to make them. The appointment is only
for the time required for the decision, and only for the decision(s)
that the vulnerable person is unable to make. The vulnerable
person retains the right to make all other decisions.
A substitute decision maker may only be appointed
for a maximum of five years. If at the end of that time, the vulnerable person continues to require to have decisions made and is unable to make them, the appointment may be renewed.
Who is considered to be a vulnerable
person?
According to The Vulnerable Persons Living with a Mental Disability Act (the Act) a vulnerable person is defined as"an adult living with
a mental disability who needs assistance to meet his
or her basic needs with regard to personal care or to the management
of his or her property."
For an individual to be considered mentally
disabled, the disability must have occurred prior to the age
of 18. The individual must also have significantly impaired
intellectual functioning and impaired adaptive behaviour.
Who can be appointed as a substitute
decision maker?
Adults who are willing, able and suitable
to act as substitute decision makers may be appointed
by the Commissioner to make decisions for vulnerable persons.
These may be family members, friends or others willing to act
in this capacity. One or more persons may be appointed to act
as joint or alternate substitute decision makers. If
no one is available, the Public Trustee will be appointed as
substitute decision maker.
Service providers may not he appointed
as substitute decision makers for the vulnerable person
to whom they provide service.
All individuals applying to be appointed
as substitute decision makers must satisfy a criminal record
check and Child Abuse Registry check.
What powers does a substitute decision
maker have?
A substitute decision maker is given the power
to make only those decisions that a vulnerable person requires
to be made and is unable to make. The Act divides the
powers that may be granted in two major areas: personal
care and property.
An individual can apply to be appointed
as the substitute decision maker for both the management of
a vulnerable person's personal care as well as his or her property.
However, the applicant does not have to apply for powers in
both areas. The applicant may choose to apply only for personal
care. The applicant may also choose to apply only for property.
For example, if a vulnerable person had two brothers,
one brother could be appointed as substitute decision maker
for personal care and the second brother could be appointed
as the substitute decision maker for property.
1) Personal Care
Powers are only granted in those areas where a vulnerable
person is incapable of making decisions that need to
be made. For example, the power to start or settle a legal claim
would not be granted to the substitute decision maker
unless the vulnerable person has a legal issue requiring resolution.
Some of the powers that may be granted to the
substitute decision maker for personal care are:
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to make decisions regarding the
vulnerable person's living arrangements;
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to make health care decisions on
the vulnerable person's behalf;
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to make decisions regarding the
vulnerable person's working arrangements;
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to make decisions regarding the vulnerable
person's participation in educational or life skills training;
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to make decisions regarding the
vulnerable person's participation in social or recreational
activities; and
-
to make decisions about daily living
on behalf of the vulnerable person.
2) Property
Powers are only granted in those areas where a vulnerable person
is incapable of making a decision that needs to be made. For
example, the power to operate a vulnerable person's business
would not be granted if he or she had no business. Some
of the most common powers granted to the substitute decision
maker for property are:
- to purchase, sell, dispose of or transfer personal
belongings on behalf of the vulnerable person;
- to receive, deposit and invest money on behalf
of the vulnerable person;
- to pay bills on the vulnerable person's behalf; and
- to apply for any benefits for which the vulnerable person
may be eligible.
What are the duties of
a substitute decision maker?
The duties of a substitute decision maker vary
with the powers he or she is granted. For example, a substitute
decision maker with responsibility only for specific
areas of personal care will confine his or her duties to these
areas. Similarly, a substitute decision maker for property
will restrict his or her activities to those specific areas
for which he or she has been given decision making power. A
substitute decision maker with power for personal care and property
will have duties in relation to both areas. However,
there are differences between the duties for personal
care and property. These are:
1) Personal Care
In exercising his or her powers, the substitute decision maker
for personal care is required to:
- comply with the terms and conditions of his or her appointment;
- act diligently and in good faith;
- make reasonable efforts to explain his or her
powers and duties to the vulnerable person;
- seek to foster the vulnerable person's independence;
- encourage the vulnerable person to participate in the
substitute decision maker's decision;
- choose the least restrictive and least intrusive course
of action available in a situation; and
- take into consideration the vulnerable person's wishes,
values, beliefs and best interests.
2) Property
A substitute decision maker for property is expected
to perform the duties listed under personal care as well as:
- keep a record of all transactions involving the vulnerable
person's property;
- make expenditures that are necessary for the vulnerable
person's support, education and care; and
- provide regular written reports to the Commissioner
which detail the substitute decision maker's management
of the vulnerable person's property.
How is an application made to have
a substitute decision maker appointed?
Anyone may obtain and complete a written application
form asking the Commissioner to appoint a substitute decision
maker for a vulnerable person. The applicant may ask to be appointed
the substitute decision maker, or may indicate that someone
else is willing to be considered for the appointment.
Application forms may be picked up or requested
from regional offices of Manitoba Family Services and Housing or
from the Office of the Vulnerable Persons' Commissioner.
How does the application process
work?
- The applicant submits an application for the appointment
of a substitute decision maker to the Commissioner's office.
- The Commissioner will provide the person for whom the
application is made with a copy of the application.
- Once the Commissioner conducts a preliminary investigation
of the application, the Commissioner will decide whether
to dismiss the application or refer it to a hearing panel.
- If the application is referred to a hearing panel, the
three-member panel will conduct a hearing and make recommendations
to the Commissioner. After considering the hearing panel's
recommendations, the Commissioner will decide to either dismiss
the application or appoint a substitute decision maker.
Must a vulnerable person have a substitute
decision maker?
No. If a vulnerable person is capable of making
his or her own decisions, alone or with the assistance
of a support network, or if there are no decisions to be made,
no substitute decision maker needs to be appointed.
Is it possible to appeal the
Commissioner's decision?
Most of the decisions made by the Commissioner
can be appealed to the Court of Queen's Bench. Upon hearing
the appeal, the court may decide to set aside, vary or confirm
the decision of the Commissioner.
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