Frequently Asked Questions
Is an adult living with an intellectual disability required to have a substitute decision maker?
No. If the person is making their own decisions, alone or with the involvement of their support network, a substitute decision maker appointment is not required.
Who can be appointed as a substitute decision maker?
The Commissioner may appoint any adult, who consents to act as a substitute decision maker and who, in the opinion of the Commissioner,
- is apparently capable, suitable and able to act as the substitute decision maker, and
- will not be in a position where their interests conflict interests of the person for whom the appointment is made.
Proposing a substitute decision maker is a very important decision and one should familiarize themselves with the duties and responsibilities of a substitute decision maker.
Service providers may not be appointed as substitute decision makers for a person to whom they provide service.
If a substitute decision maker is required for an adult living with an intellectual disability, and there is no one who meets the above eligibility requirements, The Public Guardian and Trustee will be appointed as the substitute decision maker. Learn more about the Office of the Public Guardian and Trustee.
Can more than one substitute decision maker be appointed?
Yes, there are three different variations of appointments that can be considered when proposing either one or more persons to be appointed to act as a substitute decision maker:
1. Sole substitute decision maker:
The applicant can propose one person to be appointed to act as the substitute decision maker in the area of personal care and/or in the area of property. This means that there may be one person proposed to be a substitute decision maker in both areas of personal care and property, or there may be one person proposed as substitute decision maker for personal care and a different person as substitute decision maker for property.
If applying to act in the area of property, the proposed sole substitute decision maker must reside in Manitoba. Should a sole substitute decision maker move out of Maniotba, they would no longer be suitable to act as the substitute decision maker and the Office of the Commissioner for Adults Living with an Intellectual Disability would take steps to address the situation, up to terminating the varying appointments.
2. Joint substitute decision maker:
The applicant can propose two or more persons to be appointed to act as joint substitute decision makers in one or both areas of personal care and property. A joint appointment requires the parties to act together in their roles as substitute decision makers. One cannot make decisions independent of the other. In the event of the death of one of the joint substitute decision makers the other substitute decision maker will continue on in their role as substitute decision maker.
If applying to act in the area of property, one of the proposed joint substitute decision makers must reside in Manitoba.
3. Alternate substitute decision maker:
The application can propose the appointment of an alternate substitute decision maker to act on the death of, or in the temporary absence of, the sole or joint substitute decision makers.
All proposed substitute decision makers must consent to the appointment by completing Schedule B – Consent Form for Consideration of Appointment as Substitute Decision Maker and must submit a Criminal Record Check with the Vulnerable Sector Search, Child Abuse Registry Check and Adult Abuse Registry Check (see Schedule C for more details).
If applying to act in the area of property, there may also be a requirement for the substitute decision maker to post a bond with or without surety equal to the amount of the sworn value of the property to be managed by the substitute decision maker. This will be determined by the Commissioner at the time of the appointment. For more information, see the Guidelines, Policies and Procedures on Bonds and Sureties for Substitute Decision Makers for Property and A Fact Sheet on Substitute Decision Making.
What happens when the Public Guardian and Trustee is appointed as the substitute decision maker?
When an adult living with an intellectual disability requires a substitute decision maker but no private individual is willing or appropriate, the Public Guardian and Trustee is named. If The Public Guardian and Trustee is appointed to act as the substitute decision maker, they will assign a person called an Adult Services Administrator. That person will be the contact on behalf of The Public Guardian and Trustee.
Please refer to the “A Client Guide to The Public Guardian and Trustee’s Adult Services Department" for more information on what The Public Guardian and Trustee will do if appointed as the substitute decision maker and how they make decisions.
Appealing the Decision
If I disagree with the Commissioner's decision what can I do?
Decisions made by the Commissioner, other than decisions pertaining to the referral or non-referral of a matter to a hearing panel and the temporary placement of an adult living with an intellectual disability in a development centre, can be appealed to the Manitoba Court of King's Bench.
To commence an appeal, the person appealing must file a Notice of Application with the Manitoba Court of King’s Bench within 30 days of receiving a copy of the Commissioner’s decision or within such further time as the Court permits.
Upon receiving a copy of the Notice of Application, the Commissioner will provide the court with copies of all documentation which gave rise to the decision being appealed. The court has the authority to determine the appeal procedures. A judge will hear the appeal as a “fresh” matter and may consider the documents provided by the Commissioner or any other evidence relevant to the appeal.
Upon hearing the appeal, the court may decide to set aside, vary or confirm the decision of the Commissioner.
For more information on the appeal process refer to the General Information Regarding Appeals factsheet or Division 9 of The Adults Living with an Intellectual Disability Act.
How can a Substitute Decision Maker get a copy of the appointment document in case of misplacement?
A substitute decision maker can get a copy of the appointment document by contacting the Office of the Commissioner for Adults Living with an Intellectual Disability.
Can someone apply themselves to become a Substitute Decision Maker?
Yes. An individual can submit an application for them to be appointed the substitute decision maker.
What should I do if my intellectual disability was diagnosed after I turned 18 years old?
If an adult’s intellectual disability manifested before the age of 18, but they were not diagnosed until they were 18 or older, they may still be eligible for Community Living disABILITY Services. Please see the CLDS webpage for more information.
If an adult’s intellectual disability manifested after they turned 18, they are covered under the Mental Health Act. For more information, contact your local Regional Health Authority.
What is the difference between a substitute decision maker and a committee?
Substitute decision makers are named under the authority of The Adults Living with an Intellectual Disability Act. They are only applicable for adults whose intellectual disability manifested prior to the age of 18 (and who meet the other criteria in the act). A substitute decision maker can only be appointed by the Commissioner for Adults Living with an Intellectual Disability.
Committees are named under The Mental Health Act. They are applicable in any case of mental incapacity that is not covered under The Adults Living with an Intellectual Disability Act. This can include people whose mental disability manifested after 18, for example individuals with dementia or mental impairment. Committee appointments are always made by the Court of King’s Bench.
For more information about committees, please visit the Committeeship Guidebook created by the Public Guardian and Trustee’s Office.
