Oversight
One of the most important roles of the Commissioner for Adults Living with an Intellectual Disability is to protect adults living with an intellectual disability from abuse. This is reflected throughout The Adults Living with an Intellectual Disability Act. There are several oversight mechanisms in the act to ensure that adults living with intellectual disability are protected at every part of the substitute decision making process.
Oversight for applicants
Eligibility
Individuals wishing to be a substitute decision maker must meet the criteria set out in the act, which requires that:
- the person be capable,
- the person be suitable,
- the persons be able to act
- the person be willing to serve as the substitute decision maker
- the person not have a conflict of interest, such as being paid to provide services to the person
Ensuring that proposed substitute decision makers meet the eligibility criteria is one of the ways the Office of the Commissioner for Adults Living with an Intellectual Disability provides oversight from the outset.
Documentation
An application to name a substitute decision maker requires significant documentation and due diligence by the Office of the Commissioner for Adults Living with an Intellectual Disability. Examples include:
- Requiring a Criminal Record check with the Vulnerable Sector Search
- Requiring an Adult Abuse Registry check
- Requiring a Child Abuse Registry check
- Requiring a Credit Check for substitute decision makers for property
It is important to remember that, when considering an application, the Office of the Commissioner for Adults Living with an Intellectual Disability cannot assume best intentions or good faith without supporting evidence. The legal role of the Commissioner requires them to gather as much information as necessary to make an informed decision. Although this process may at times feel invasive, it is a crucial component of ensuring that substitute decision makers are capable, suitable, and able to act, as required by law.
Hearing Panels
A hearing panel may be held to consider an application where the Commissioner feels the matter requires additional consideration, or where someone has requested it. Hearing panels are a way of gathering more information in order to make recommendations as to whether a substitute decision maker appointment should move forward.
Oversight for Substitute Decision Makers
Substitute Decision Makers for Personal Care
If an application to renew a substitute decision maker for personal care appointment is submitted, the applicant will go through a comprehensive review. This includes considering how the adult living with an intellectual disability’s situation has changed, whether they have a support network and what efforts will be made to develop one, and whether the powers granted to the substitute decision maker will change.
An application for renewal is not a formality: the process involves a full consideration of all factors. Applicants must continue to demonstrate that an appointment is necessary. This includes demonstrating that decisions need to be made and that the appointment is a last resort.
Substitute Decision Maker for Property
Substitute decision makers for property are subject to an annual accounting of the property of the adult living with an intellectual disability. This involves filing statements annually with the Office of the Commissioner for Adults Living with an Intellectual Disability and responding to any questions.
If the Commissioner identifies any issues with the annual accounting, they will work with the substitute decision maker to seek more information or let them know what corrective steps should be taken. In certain cases, if the annual accounting is a source of serious concern, the Commissioner (or any other person) may file an application to terminate, vary, or replace the substitute decision maker appointment.
Substitute decision makers for property are also subject to requirements depending on the value of the property (for additional detail, see the Bonds and Sureties requirements). This is one way of ensuring that substitute decision makers are held responsible for the proper management of the adult living with an intellectual disability’s property. These requirements are similar to those in other Canadian jurisdictions.
As with substitute decision makers for personal care, substitute decision makers for property must go through a comprehensive review when seeking to renew an appointment.
When the Public Guardian and Trustee is the substitute decision maker
The Public Guardian and Trustee is the substitute decision maker of last resort and is only appointed when:
- There is no suitable person willing to serve as the substitute decision maker
- Any person willing to serve as the substitute decision maker is not capable, suitable, and able to act, as required by law.
In situations where the Public Guardian and Trustee is the substitute decision maker, they are subject to the same requirements at the time of application. The Public Guardian and Trustee is also subject to the same review as any other substitute decision maker when the appointment is up for renewal.
The Public Guardian and Trustee is not subject to the same requirements as private substitute decision makers for personal property, who are required to provide an annual accounting. This reflects the fact that the Public Guardian and Trustee is a Special Operating Agency within the Manitoba government. As a result, employees of the Public Guardian and Trustee are subject to professional requirements and direct government oversight on an ongoing basis. This is not the case for private substitute decision makers.
Oversight in case of emergencies
In emergencies, a person may apply for:
- An emergency appointment of a substitute decision maker, if none is currently in place. This could include situations where an urgent medical decision needs to be made.
- An emergency variance of an existing appointment to change the powers of a substitute decision maker, such as when additional powers are needed to deal with an unexpected situation.
Emergency appointments are meant to be a stop-gap measure to address an urgent situation. As a result, the terms of these appointment is kept to a maximum of 90 days. If a more permanent solution is needed, an individual may apply for an appointment using the regular process.
