Families

Information for Applicants

General Information

How do I know if a substitute decision maker is needed?

A substitute decision maker appointment is a significant step that places part of an individual’s legal decision making power in someone else’s hands. Because this is a serious obligation, it is always treated as a last resort. The act also sets out “supported decision making,” which is a less formal arrangement where an individual with intellectual disabilities makes decisions with the help of a support network of friends, family, and community.

In order for a substitute decision maker appointment to go forward, the application must demonstrate that supported decision maker is not sufficient. This could include situations where:

The adult living with an intellectual disability is not able to understand information that is important for making decisions
The adult living with an intellectual disability is not able to appreciate the consequences of making or not making a decision

What is a Substitute Decision Maker?

A substitute decision maker is one or more individuals appointed by the Commissioner for Adults Living with an Intellectual Disability to make decisions for an adult with an intellectual disability who is unable to make certain decisions for themselves in the area of personal care or property or both. A substitute decision maker has the legal authority to make decisions for the adult living with an intellectual disability in those specific areas in which they have been given power by the Commissioner. Applications to be a substitute decision maker must clearly identify which areas the adult living with an intellectual disability is not capable of making decisions. In keeping with the principle of the act, there is no "blanket" appointment that covers all decisions - adults living with an intellectual disability are treated as though they have capacity to make decisions until proven otherwise. Appointments vary in length. Following the first appointment, an appointment may be renewed for up to ten years in certain circumstances.

What Powers does a Substitute Decision Maker have?

A substitute decision maker is only given the authority to make those decisions that are currently before the adult living with an intellectual disability and that they are unable to make on their own or with the assistance of their support network.

A substitute decision maker is appointed when a decision is necessary. An application may not be accepted if there is no specific decision that needs to be made. In other words, the commissioner does not appoint substitute decision makers “pre-emptively.”

The powers that may be granted by the Commissioner are divided into two major areas – personal care and property. An applicant can propose that a substitute decision maker be appointed for the management of the adult living with an intellectual disability's personal care, property, or both personal care and property.

Personal Care
Some of the powers that may be granted to the substitute decision maker for personal care are:

decisions regarding the person's living arrangements
health care decisions on the person's behalf
decisions regarding the person's work arrangements
decisions regarding the person's participation in educational or life skills training
decisions regarding the person's participation in social or recreational activities; and
decisions about daily living activities on behalf of the person

Property
Some of the powers that may be granted to the substitute decision maker for property are:

to purchase, sell, dispose of or transfer personal belongings on behalf of the person;
to receive, deposit and invest money on behalf of the person
to pay bills on the person's behalf; and
to apply for any benefits for which the person may be eligible.

For more information and a full list of the powers that may be granted see pages 7, 8 and 9 of the Guide to Completing a Substitute Decision Maker Application.

What are the Duties and Obligations of Substitute Decision Makers?

In exercising his or her powers, the substitute decision maker is required to:

comply with the terms and conditions of their appointment
act diligently and in good faith
make reasonable efforts to explain their powers and duties to the adult living with an intellectual disability
seek to foster the person's independence
encourage the 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 person's wishes, values, beliefs and best interests.

A substitute decision maker must also notify the Commissioner in writing of any change in their name, address or phone number, and any change in the name and address of the person for whom they are the decision maker.

How to Apply for a Substitute Decision Maker

Anyone who believes an adult living with an intellectual disability is in need of a substitute decision maker may complete an application form asking the Commissioner to appoint a substitute decision maker for the adult living with an intellectual disability. The applicant may ask to be appointed as the substitute decision maker, or may indicate that someone else is willing to be appointed.

The following information and forms need to be completed when applying for a substitute decision maker.

The Application and the Guide can also be picked up or mailed out upon request from any regional office of Manitoba Families or from the Office of the Commissioner for Adults Living with an Intellectual Disability.

Do I have to tell anyone that I am putting forward an application?

Yes, you should tell the individual with intellectual disabilities, who is the subject of the application, and others involved that you are putting forward an application.

Application Process

How does the application process work?

Application Process Flow Chart:

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 enough information has been received to make a decision in regards to appointing a substitute decision maker or dismissing the application, or to refer the application to a hearing panel to gather more information prior to making a decision.
If the application is referred to a hearing panel, a three-member panel will conduct a hearing and make recommendations to the Commissioner.
After considering the hearing panel's recommendations, the Commissioner will decide either to appoint a substitute decision maker or to dismiss the application.

At each step of the application process, notices are sent to the individual who is the subject of the application, his or her support network and other parties as determined by the Act. Those receiving Notices can submit a request in writing to the Commissioner for written reasons for his or her decision. each step of the application process, notices are sent to the individual who is the subject of the application, his or her support network and other parties as determined by the Act.

The Commissioner's Decision

Who decides whether to appoint a substitute decision maker?

After considering the application, the supporting documents and possibly the Hearing Panel’s recommendations, the Commissioner will decide whether or not the individual needs a substitute decision maker.

How does the Commissioner decide?

The Commissioner’s decision is based on the following criteria:

whether the individual is an adult living with an intellectual disability as set out in the act
whether the individual is incapable of personal care even with the involvment of their support network
managing theirproperty even with the involvement of his/her support network; individual is incapable of managing their property even with the involvement of their support network
whether there are decisions to be made that would require a substitute decision maker
whether the appointment is reasonable under the circumstances (e.g. to address medical needs, such a surgert that needs consent)
whether the appointment is last resort

If all of the criteria are met, then a substitute decision maker appointment is made. The Commissioner then decides:

who the substitute decision maker will be
in what area(s) the substitute decision maker will have authority to act (personal care and/or property)
what decision-making powers will be granted to the substitute decision maker;
the duration of the appointment; and
any terms and conditions (if applicable)

If any of the above criteria are not met, the application is dismissed.

When will I know the Commissioner’s decision?

Normally the Commissioner’s decision will be issued within two weeks following the hearing. Delays may occur where the necessary documentation (for example Child Abuse Registry Check and Criminal Record Check with the Vulnerable Sector Search) has not been received from the proposed substitute decision maker(s). If there is no hearing panel, the decision will be made once all supporting documentation and information is received and considered.

Who is notified of the decision?

All parties who received notice of the hearing will also receive notice of the Commissioner’s decision. This includes:

the person for whom the application is made
the applicant
the proposed substitute decision maker
the current susbtitute decision maker (if applicable)
the person's committe under The Mental Health Act (if applicable)
the person's nearest relative
any other person the commissioner considers appropriate, including a member of the person's support network.

When does an Appointment take effect?

The substitute decision maker’s authority takes effect on the date stated in the Appointment Document.

How long does an Appointment last?

A substitute decision maker shall be appointed for as long as is appropriate given the decision(s) to be made. The maximum length of a first-time appointment is five years. If at the end of the appointment, the adult living with an intellectual disability continues to require decisions to be made and is unable to make them, the appointment may be renewed.

What is the scope of the Appointment?

The scope of the appointment is outlined in the Appointment Document. It includes:

the name of the person for whom the appointment is being made,
the name(s) of the substitute decision maker(s) appointed,
the area for which the appointment is made (personal care or property),
a list of the specific powers granted, and
if applicable, any terms and conditions to the appointment.

For more detailed information on the powers that may be granted to a substitute decision maker see pages 7, 8, and 9 of the Guide to Completing the Substitute Decision Maker Application.

Other relevant information can also be found under SDM Duties and Responsibilities.

Review and Renew an Appointment

What changes can be made to an existing appointment?

At any point during the term of an appointment, any person may apply to the Commissioner to terminate or vary the existing substitute decision maker appointment or to replace a substitute decision maker who has died or whose appointment has been terminated. The Commissioner may also initiate an application to terminate, vary or replace an appointment.

The Application process is similar to the one for the original substitute decision maker appointment, with the primary distinction that the Commissioner may consider these applications without referring them to a hearing panel. If the Commissioner considers an application without referring it to the hearing panel, the applicant and the persons notified of the application are given an opportunity to present information in writing for the Commissioner’s consideration.

The Commissioner may refuse to consider an application for termination, variation or replacement if the application is considered frivolous or vexatious (made in bad faith). If so, the Commissioner will notify the applicant and the person who is the subject of the application.

Individuals who receive notices during the variation or termination/replacement application process can submit a request in writing to the Commissioner for written reasons for the decision.

Can an existing appointment be renewed or extended beyound the initial appointment period?

Yes. however the appointment must be reviewed first.

Can an appointment be renewed more than once?

Yes, an appointment may be renewed more than onces. However, a review is undertaken before each renewal.

What is involved in a review of an appointment?

A review of an appoinment happens at the end of any term, no matter the length.

What is the purpose of a review before renewal?

The purpose of the review is to determine whether the criteria for an appointment of a substitute decision maker continue to be met and if so:

whether the appointment of the substitute decision maker should be renewed or whether another person should be appointed
whether an additional or alternate substitute decision maker should be appointed; and
whether the powers, terms or conditions of the appointment should change.

Withdraw an appointment

Sometimes after an application has been made, the applicant (or applicants) may wish to withdraw the application.

In these situations the applicant or applicants can make a request to the Commissioner to withdraw the application. This request can be made by completing the Request to Withdraw an Application Relating to the Appointment of a Substitute Decision Maker form and forwarding it to the Office of the Commissioner for Adults Living with an Intellectual Disability.

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