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C.C.S.M. c. V90

The Vulnerable Persons Living with a Mental Disability Act

(Assented to July 27, 1993)

WHEREAS Manitobans recognize that vulnerable persons are presumed to have the capacity to make decisions affecting themselves, unless demonstrated otherwise;

AND WHEREAS it is recognized that vulnerable persons should be encouraged to make their own decisions;

AND WHEREAS it is recognized that the vulnerable person's support network should be encouraged to assist the vulnerable person in making decisions so as to enhance his or her independence and self-determination;

AND WHEREAS it is recognized that any assistance with decision making that is provided to a vulnerable person should be provided in a manner which respects the privacy and dignity of the person and should be the least restrictive and least intrusive form of assistance that is appropriate in the circumstances;

AND WHEREAS it is recognized that substitute decision making should be invoked only as a last resort when a vulnerable person needs decisions to be made and is unable to make these decisions by himself or herself or with the involvement of members of his or her support network;

NOW THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

INTERPRETATION AND ADMINISTRATION

INTERPRETATION

Definitions

1(1)        In this Act,

"abuse" means mistreatment, whether physical, sexual, mental, emotional, financial or a combination thereof, that is reasonably likely to cause death, or that causes or is reasonably likely to cause serious physical or psychological harm to a vulnerable person, or significant loss to his or her property; (« mauvais traitements »)

"adult abuse registry committee" means the Adult Abuse Registry Committee under The Adult Abuse Registry Act; (« comité »)

"appeal board" means the Social Services Appeal Board under The Social Services Appeal Board Act; (« Commission d'appel »)

"area of decision making" means, in relation to the powers given to a substitute decision maker, the area of personal care or of property management; (« domaine décisionnel »)

"capable" means mentally capable and "capacity" has a corresponding meaning; (« capable »)

"commissioner" means the person appointed as the Vulnerable Persons' Commissioner under section 29; (« commissaire »)

"committee" means

(a) a committee appointed by the court under The Mental Health Act or otherwise, or

(b) the Public Guardian and Trustee as a committee by operation of clause 80(1)(b), (c) or (d) of The Mental Health Act as it read immediately before the coming into force of this Act; (« curateur »)

"common-law partner" of a person means

(a) another person who, with the person, registered a common-law relationship under section 13.1 of The Vital Statistics Act, and who is cohabiting with the person, or

(b) another person who, not being married to the person, is cohabiting with him or her in a conjugal relationship and has so cohabited for a period of at least six months; (« conjoint de fait »)

"court" means the Court of Queen's Bench; (« tribunal »)

"developmental centre" means a facility designated as a developmental centre in the regulations; (« centre de développement »)

"executive director" means an executive director appointed under section 7; (« directeur général »)

"health care" means any care, service, treatment, or procedure to maintain, diagnose, treat or provide for a person's physical or mental health and includes anything done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose; (« soins de santé »)

"health care directive" means a health care directive made in accordance with The Health Care Directives Act; (« directives en matière de soins de santé »)

"hearing panel" means a hearing panel established under section 35; (« comité d'audience »)

"incapable" means mentally incapable and "incapacity" has a corresponding meaning; (« incapable »)

"individual plan" means a plan for a vulnerable person under section 11; (« plan individuel »)

"mental disability" means significantly impaired intellectual functioning existing concurrently with impaired adaptive behaviour and manifested prior to the age of 18 years, but excludes a mental disability due exclusively to a mental disorder as defined in section 1 of The Mental Health Act; (« déficience mentale »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"nearest relative" means, with respect to a person, the adult person first listed in the following clauses who is living in Canada, relatives of the whole blood being preferred to relatives of the same description of the half-blood and the older or oldest of two or more relatives described in any clause being preferred to the other of those relatives regardless of gender:

(a) a spouse, unless there is a common-law partner,

(a.1) a common-law partner,

(b) son or daughter,

(c) father or mother,

(d) brother or sister,

(e) grandfather or grandmother,

(f) grandson or granddaughter,

(g) uncle or aunt,

(h) nephew or niece; (« parent le plus proche »)

"neglect" means an act or omission whether intentional or unintentional, that is reasonably likely to cause death or that causes or is reasonably likely to cause serious physical or psychological harm to a vulnerable person, or significant loss to his or her property; (« négligence »)

"proxy" means a person appointed as a proxy in a health care directive made in accordance with The Health Care Directives Act; (« mandataire »)

"service provider" means

(a) a person who provides care, support services or related assistance for a vulnerable person

(i) in the course of professional, official or employment duties,

(ii) as a student in a training placement,

(iii) as a volunteer, or

(iv) as an owner, operator or manager of a facility or business which provides such care, support services or related assistance, and

(b) an employee under The Civil Service Act who provides services for a vulnerable person in the course of employment duties; (« fournisseur de services »)

"spouse" means the person to whom a person is married; (« conjoint »)

"substitute decision maker" means a substitute decision maker for personal care or a substitute decision maker for property appointed in accordance with this Act; (« subrogé »)

"substitute decision maker for personal care" means a person appointed as a substitute decision maker for personal care for a vulnerable person in accordance with this Act; (« subrogé à l'égard des soins personnels »)

"substitute decision maker for property" means a person appointed as a substitute decision maker for property for a vulnerable person in accordance with this Act; (« subrogé à l'égard des biens »)

"support network" means one or more persons who provide advice, support or assistance to a vulnerable person and may include

(a) the vulnerable person's spouse or common-law partner,

(b) other members of the vulnerable person's family, and

(c) others chosen by the vulnerable person; (« réseau de soutien »)

"support services" means those services which may be provided for a vulnerable person under section 9; (« services de soutien »)

"vulnerable person" means an adult living with a mental disability who is in need of assistance to meet his or her basic needs with regard to personal care or management of his or her property. (« personne vulnérable »)

Reference to "Act" includes regulations

1(2)        A reference to "this Act" includes the regulations made under this Act.

S.M. 2001, c. 9, s. 34; S.M. 2002, c. 24, s. 55; S.M. 2002, c. 48, s. 24; S.M. 2011, c. 26, s. 47; S.M. 2013, c. 46, s. 46.

Presumption of capacity re legal counsel

2           If the capacity of a vulnerable person or, a person for whom an application for the appointment of a substitute decision maker is made, is in issue under this Act, the person shall be deemed to have capacity to retain and instruct counsel.

When Mental Health Act applies

3           The Mental Health Act, rather than this Act, applies to vulnerable persons who are patients in psychiatric facilities.

Act subject to Health Care Directives Act

4           This Act is subject to The Health Care Directives Act and where there is a conflict between this Act and The Health Care Directives Act, The Health Care Directives Act prevails.

Application if person is 17 years of age

5            Despite anything in this Act, where a person is a child 17 years of age who appears to meet the criteria of this Act for the appointment of a substitute decision maker, an application under Part 4 may be made and considered as if the person were an adult, but an appointment of a substitute decision maker has no effect until the person becomes an adult.

Supported decision making

6(1)        In this section, "supported decision making" refers to the process whereby a vulnerable person is enabled to make and communicate decisions with respect to personal care or his or her property and in which advice, support or assistance is provided to the vulnerable person by members of his or her support network.

Role of supported decision making

6(2)        Supported decision making by a vulnerable person with members of his or her support network should be respected and recognized as an important means of enhancing the self-determination, independance and dignity of a vulnerable person.

ADMINISTRATION

Appointment of executive director

7           The minister may appoint one or more executive directors who shall under the direction of the minister

(a) exercise some or all of the powers and perform some or all of the duties of an executive director under this Act;

(b) respond to inquiries respecting support services under Part 2;

(c) respond to inquiries respecting the protection of vulnerable persons and emergency intervention action under Part 3; and

(d) perform such other duties and exercise such other powers as may be required by the minister.

Delegation by executive director

8           An executive director may in writing authorize a person to perform any of the duties or exercise any of the powers of that executive director.

PART 2

SUPPORT SERVICES

Support services provided

9            The minister may provide or arrange for the provision of support services for a vulnerable person.

Authority for grants and agreements

10(1)       The minister may make grants or payments to, purchase services from, or enter into agreements with, persons or organizations to provide support services for vulnerable persons under such terms and conditions as the minister considers appropriate.

Records and disclosure

10(2)       A person or organization that receives a grant or payment or enters into an agreement under subsection (1) shall

(a) keep accounting records and financial statements respecting the grant, payment or agreement, in such form and for such periods of time as the minister may require;

(b) keep such records and such statistics and prepare such information respecting the programs, policies or procedures of that person or organization pertaining to support services as the minister may require; and

(c) upon request, provide to the minister

(i) the accounting records and financial statements referred to in clause (a), certified by an auditor, and

(ii) the records, statistics and other information referred to in clause (b).

Audit by an auditor

10(3)       The minister may request an auditor, who may be the Auditor General, to examine and audit the documents required to be kept under clauses (2)(a) and (b) and to report to the minister.

Access to documents

10(4)       To facilitate an examination and audit under subsection (3), the person or organization shall give the auditor

(a) an opportunity to examine, audit and make copies of any document respecting the grant, payment or agreement referred to in subsection (1); and

(b) all reasonable assistance to enable that person to examine, audit and make copies of any document respecting the grant, payment or agreement.

Action by minister

10(5)       The minister may refuse to make a grant or payment under subsection (1), including a payment under an agreement, if

(a) the person or organization fails to comply with subsection (4);

(b) the person or organization refuses to provide the minister with documentation requested under clause (2)(c); or

(c) the report of the auditor indicates that the accounting records and financial statements provided to the minister are not in order.

S.M. 2001, c. 39, s. 31.

INDIVIDUAL PLAN

Individual plan required

11(1)       The executive director shall develop an individual plan for every vulnerable person who receives support services under this Part.

Review of individual plan

11(2)       The executive director may review an individual plan and vary it,  or determine that the person for whom support services were provided is no longer a vulnerable person.

Participation in individual planning process

12          The executive director shall take reasonable steps to ensure that the vulnerable person and his or her substitute decision maker or committee if any, have an opportunity to participate in the development of, and are informed of any decisions respecting, the individual plan.

MEDIATION

Mediator appointed

13          If a dispute arises

(a) as to whether the person for whom support services are requested is a vulnerable person; or

(b) concerning the individual plan or any other issue as to the design or implementation of support services for a vulnerable person;

the executive director may, on request, appoint a mediator who shall endeavour to facilitate a settlement of the dispute.

Executive director advised of mediation results

14          Within a reasonable period following his or her appointment, the mediator shall advise the participants and the executive director in writing of the results of the mediation.

Settlement not binding

15          A settlement of a dispute under mediation is not binding on the government or on any person.

APPEAL TO APPEAL BOARD

Decision by executive director

15.1        When there is a dispute about a matter referred to in clause 16(1)(a) or (b), the executive director shall

(a) make his or her decision in writing and include reasons; and

(b) advise each person referred to in subsection 16(2) of the right to appeal the decision to the appeal board.

S.M. 2001, c. 9, s. 34.

Matters which may be subject of appeal

16(1)       Whether or not mediation is attempted, a person referred to in subsection (2) may appeal to the appeal board a decision of the executive director

(a) as to whether the person for whom support services are requested is a vulnerable person; or

(b) as to the individual plan for a vulnerable person, or any other issue as to the design or implementation of support services for a vulnerable person, unless the decision involves

(i) an increased allocation of funds for support services for the person for whom support services are requested, or

(ii) a change to regulations or policies respecting support services for vulnerable persons.

Who may bring appeal

16(2)       An appeal to the appeal board may be made by

(a) the person for whom support services are requested; or

(b) the person's substitute decision maker or committee.

The Social Services Appeal Board Act applies

16(3)       The provisions of The Social Services Appeal Board Act apply with respect to an appeal to the appeal board.

S.M. 2001, c. 9, s. 34.

17 to 19    [Repealed]

S.M. 2001, c. 9, s. 34.

20(1)       [Repealed] S.M. 2001, c. 9, s. 34.

Limitation on appeal board

20(2)       The appeal board shall not make an order concerning the individual plan or any other issue as to the design or implementation of support services for a vulnerable person, if implementing the order could involve

(a) an increased allocation of funds for support services for the vulnerable person; or

(b) a change to regulations or policies respecting support services for vulnerable persons.

S.M. 2001, c. 9, s. 34.

PART 3

PROTECTION AND EMERGENCY INTERVENTION

PROTECTION

Abuse or neglect of vulnerable person prohibited

20.1         No person shall abuse or neglect a vulnerable person.

S.M. 2011, c. 26, s. 47.

Duty to protect vulnerable person from abuse or neglect

20.2        A service provider, substitute decision maker or committee has a duty to take all reasonable steps to protect the vulnerable person in respect of whom he or she is a service provider, substitute decision maker or committee from abuse or neglect.

S.M. 2011, c. 26, s. 47.

Duty to report abuse or neglect

21(1)       A person who believes on reasonable grounds that a vulnerable person is, or is likely to be abused or neglected, shall immediately report the belief and the information on which it is based to the executive director.

Subsection (1) applies despite restrictions

21(2)       Subsection (1) applies despite any restriction respecting the disclosure of information, in legislation or elsewhere.

S.M. 2011, c. 26, s. 47.

Protection from liability

21.1        No action or other proceeding may be brought against a person for reporting in good faith that a vulnerable person is or is likely to be abused or neglected.

S.M. 2011, c. 26, s. 47.

Adverse employment action prohibited

21.2        No person shall dismiss, suspend, demote, discipline, harass, interfere with or otherwise disadvantage a person who makes a report under section 21.

S.M. 2011, c. 26, s. 47.

Investigation by executive director

22(1)       When the executive director receives a report under section 21 or believes on reasonable grounds that a vulnerable person is or is likely to be abused or neglected, the executive director shall investigate the matter.

Powers of investigation

22(2)       In conducting an investigation under this section, the executive director may

(a) communicate with and visit the vulnerable person and may enter any place at any reasonable time for this purpose;

(b) require any person to provide any information, including personal information as defined in The Freedom of Information and Protection of Privacy Act and personal health information as defined in The Personal Health Information Act, or produce any record, paper or other thing in his or her custody or under his or her control which, in the opinion of the executive director, may be relevant to the investigation; and

(c) solicit, accept and review reports and information which in the opinion of the executive director, may be relevant to the investigation.

S.M. 2011, c. 26, s. 47.

Order for entry

23(1)       On application by the executive director, a justice may make an order authorizing the executive director, a peace officer or any other person named in the order to enter any place for the purposes of an investigation under section 22 if the justice is satisfied that

(a)  there are reasonable grounds to believe that a vulnerable person is or is likely to be abused or neglected; and

(b)  the executive director has been unable to gain access to that vulnerable person.

Authority to enter

23(2)       An order under subsection (1) is sufficient authority for the person named in the order to enter, using reasonable force if necessary, any place specified in the order.

Peace officer to assist

23(3)       A person named in an order under subsection (1) may request the assistance of a peace officer in taking action under this section, and the peace officer shall provide such assistance.

Solicitor-client privilege protected

24          Nothing in section 21 or 22 abrogates a privilege that may exist between a solicitor and his or her client.

Protective action by executive director

25          If, after an investigation, the executive director believes that a vulnerable person is or is likely to be abused or neglected, the executive director may take such action to protect the vulnerable person as he or she considers appropriate, including one or more of the following:

(a) providing or arranging for support services for the vulnerable person in accordance with Part 2;

(b) requesting an investigation by a law enforcement agency with jurisdiction respecting the matter;

(c) taking emergency intervention action under section 26;

(d) applying for the appointment of a substitute decision maker under subsection 47(1) or 82(1);

(e) applying for an emergency appointment of a substitute decision maker, or, for suspension or variation of an appointment on an emergency basis under Division 6 of Part 4;

(f) applying for termination of the appointment of a substitute decision maker, replacement of a substitute decision maker or variation of an appointment under Division 7 of Part 4.

Report regarding professional, etc.

25.1(1)     If the executive director believes on reasonable grounds that a person

(a) has abused or neglected a vulnerable person; or

(b) has failed to report information in accordance with section 21;

the executive director may report the matter to the body or person that governs the professional status of the person or certifies, licenses, or otherwise authorizes or permits the person to carry on his or her work or occupation.

Requirement to investigate

25.1(2)     A body or person who receives a report under subsection (1) must

(a) investigate the matter to determine whether any professional status review or disciplinary proceedings should be commenced against the person; and

(b) on conclusion of the investigation and any proceedings, advise the executive director of the determination under clause (a), the reasons for the determination, and, if applicable, the results of any professional status review or disciplinary proceedings.

S.M. 2011, c. 26, s. 47.

Report to employer

25.2        If, after an investigation the executive director believes that a vulnerable person has been abused or neglected and the employment duties of the person who abused or neglected the vulnerable person

(a) involve the care of a vulnerable person, or the provision of support services or other assistance to a vulnerable person; or

(b) permit unsupervised access to vulnerable persons;

the executive director must report the name of the person who abused or neglected the vulnerable person to the person's employer or manager or supervisor at his or her place of employment.

S.M. 2011, c. 26, s. 47.

Reporting abuse or neglect to adult abuse registry committee

25.3(1)     In addition to taking action under this Part, if after an investigation, the executive director believes that

(a) a person

(i) has abused a vulnerable person,

(ii) has neglected a vulnerable person, or

(iii) has abused and neglected a vulnerable person;

(b) the person meets any criteria which may be set out in the regulations; and

(c) no extenuating circumstances as set out in the regulations exist;

the executive director must provide a report about the matters in clauses (a) to (c) to the adult abuse registry committee, in accordance with the regulations.

Additional information about report for committee

25.3(2)     If the executive director receives a request for further information about his or her report from the adult abuse registry committee,

(a) the executive director may investigate the matter and provide the committee with any further information that relates to his or her report; and

(b) subsection 22(2) and section 24 apply, with necessary changes.

S.M. 2011, c. 26, s. 47.

EMERGENCY INTERVENTION

Emergency intervention action

26(1)       The executive director may, at any time and without a court order, take such emergency intervention action as is necessary to protect the vulnerable person, including removing the vulnerable person to a place of safety, if the executive director believes on reasonable grounds that

(a) the vulnerable person is or is likely to be abused or neglected; and

(b) there is immediate danger of death or serious harm or deterioration to the physical or mental health of the vulnerable person.

Right of entry

26(2)       When taking action under subsection (1), the executive director may, without a court order and using reasonable force if necessary, enter any place and take any steps necessary to protect the vulnerable person, including removing the vulnerable person to a place of safety.

Peace officer to assist

26(3)       The executive director may request the assistance of a peace officer in taking action under this section, and the peace officer shall provide such assistance.

Duration of emergency intervention

26(4)       The executive director may continue emergency intervention action taken under this section for not more than 120 hours from the time the executive director commences the action.

Placement power of substitute decision maker suspended

27          If the vulnerable person who is the subject of emergency intervention action under section 26 has a substitute decision maker for personal care who has the power to decide where the vulnerable person should live, that power is suspended during the period of an emergency intervention.

Duty to inform vulnerable person re emergency intervention

28(1)       When taking action under section 26, the executive director shall inform the vulnerable person who is the subject of the emergency intervention action of

(a) the action taken or to be taken; and

(b) the reasons for the action.

Duty to inform others

28(2)       Within 24 hours after taking emergency intervention action with respect to a vulnerable person under section 26, the executive director shall take reasonable steps to inform at least one of the following persons of the action taken:

(a) the nearest relative of the vulnerable person;

(b) any currently-appointed substitute decision maker for the vulnerable person;

(c) the vulnerable person's committee, if any;

(d) an adult person with whom the vulnerable person lives, if any;

(e) any other person, including a member of the vulnerable person's support network, the executive director considers appropriate.

PART 4

SUBSTITUTE DECISION MAKING

DIVISION 1

VULNERABLE PERSONS' COMMISSIONER

Appointment of commissioner

29          A Vulnerable Persons' Commissioner shall be appointed in accordance with The Civil Service Act.

Authority of commissioner

30          The commissioner is responsible for

(a) exercising the powers and performing the duties of the commissioner under this Act;

(b) upon request, providing information to vulnerable persons as to their rights under this Act;

(c) upon request, providing information as to the process for appointing substitute decision makers;

(d) upon request, providing information to substitute decision makers as to their powers and duties under this Act;

(e) mediating and seeking to resolve disputes between substitute decision makers;

(f) receiving and investigating complaints regarding substitute decision makers; and

(g) performing such other duties and exercising such other powers as may be required by the minister.

Delegation

31          The commissioner may in writing authorize a person or persons to perform any of the duties or exercise any of the powers of the commissioner.

Appointment if committee

32          If the commissioner appoints a substitute decision maker for a person for whom a committee has been appointed under Part 8 of The Mental Health Act, the commissioner shall immediately after making the appointment provide a copy of the appointment to

(a) the Director of Psychiatric Services under The Mental Health Act; and

(b) the Public Guardian and Trustee.

S.M. 1998, c. 36, s. 136; S.M. 2013, c. 46, s. 46.

Register of appointments

33(1)       The commissioner shall establish and maintain a register of appointments of substitute decision makers which shall include for each appointment

(a) the name of the vulnerable person for whom a substitute decision maker is appointed;

(b) the name, address and telephone number of the substitute decision maker;

(c) the area of decision making granted to the substitute decision maker, the extent of the person's powers and the terms and conditions of the appointment; and

(d) the effective date and duration of the appointment.

Updating of register

33(2)       The commissioner shall update the information contained in the register whenever he or she receives new information respecting the matters referred to in subsection (1).

Notice of changes

33(3)       A substitute decision maker shall promptly notify the commissioner in writing of

(a) any change in the name, address or telephone number of the substitute decision maker; and

(b) any change in the name of the vulnerable person.

Access to register

33(4)       The commissioner shall provide information contained in the register under subsection (1) to any person who requests the information and pays any fee that may be prescribed by regulation.

DIVISION 2

HEARING PANELS

Hearing panel roster

34(1)       The Lieutenant Governor in Council shall appoint at least 20 persons to be on a roster to act as members of hearing panels.

Composition of roster

34(2)       The hearing panel roster shall be composed of

(a) parents of vulnerable persons or other members of families of vulnerable persons;

(b) lawyers; and

(c) persons who do not fall within clause (a) or (b).

Term and reappointment

34(3)       A person may be appointed to the hearing panel roster for such term as may be fixed by the Lieutenant Governor in Council, and may be reappointed.

Remuneration and expenses

34(4)       A member of the hearing panel roster shall be paid the remuneration fixed by the Lieutenant Governor in Council and reasonable expenses incurred in the course of his or her duties under this Act.

Hearing panel established

35(1)       The commissioner shall establish a hearing panel for each application that is referred to a hearing panel under Division 3, 4 or 7.

Hearing panel to make recommendations

35(2)       A hearing panel shall hold a hearing for the purpose of making recommendations to the commissioner, in accordance with this Act, with regard to the application.

Two or more matters with respect to same person

35(3)       The commissioner may refer two or more applications to the same hearing panel for consideration at the same time, if they relate to the same person and the commissioner is of the opinion that they should be dealt with together.

Three members on each hearing panel

36(1)       Each hearing panel shall be composed of three members appointed by the commissioner from the hearing panel roster.

Criteria for appointment

36(2)       Where possible,

(a) each hearing panel shall be composed of

(i) a parent of a vulnerable person or another member of a vulnerable person's family,

(ii) a lawyer, and

(iii) a person who does not fall within subclause (i) or (ii); and

(b) the members of a hearing panel shall have a substantial connection to the same region of the province as the person for whom the application is made.

Eligibility

36(3)       A person is not eligible to act as a member of a hearing panel if he or she

(a) is related by blood to the person for whom the application is made;

(a.1) is or has been related by marriage to the person for whom the application is made;

(a.2) is or has been a common-law partner of the person for whom the application is made;

(a.3) is or has been connected by common-law relationship to the person for whom the application is made;

(b) is a service provider for the person for whom the application is made;

(c) is a lawyer who is acting for or has acted for the person for whom the application is made;

(d) is a physician who is treating or has treated the person for whom the application is made; or

(e) in the opinion of the commissioner, could be in a position where his or her interests could conflict with the interests of the person for whom the application is made.

Common-law relationships

36(3.1)     For the purpose of clause (a.3), persons are connected by common-law relationship if one is the common-law partner of a person who is related by blood to the other.

Presiding member

36(4)       The commissioner shall designate one member of a hearing panel to be the presiding member.

Two members may act if vacancy

36(5)       If a vacancy occurs on a hearing panel after it has commenced a hearing, the remaining two members may complete the hearing.

S.M. 2002, c. 24, s. 55.

Hearing panel to hold hearing

37          When an application is referred to a hearing panel, the hearing panel shall hold a hearing within a reasonable time after the referral.

Notice of hearing

38(1)       The commissioner shall give notice of a hearing before a hearing panel at least seven days before the date of a hearing.

Content of notice

38(2)       The notice must

(a) state the date, time and place of the hearing;

(b) identify in general terms the purpose of the hearing; and

(c) advise the person of the right to appear before the hearing panel and to be represented by another person.

Information to hearing panel

39           The commissioner shall provide the hearing panel with a copy of the application and any relevant material in his or her possession.

Procedure for hearing panels

40(1)       The commissioner may determine the procedures for hearing panels.

Evidence

40(2)       The hearing panel is not bound by the rules of law respecting evidence applicable to judicial proceedings.

Vulnerable person entitled to be present

40(3)       The vulnerable person, or the person for whom an application is made, is entitled to be present at the hearing.

Opportunity to be heard

40(4)       The hearing panel shall give the following persons an opportunity to present information and make representations, and, where possible, to do so orally:

(a) the persons given notice of the hearing; and

(b) any other person with the consent of

(i) the vulnerable person, or the person for whom an application for the appointment of a substitute decision maker is made, or

(ii) the hearing panel.

Representation

40(5)       A person referred to in clause (4)(a) may be represented by another person.

Hearing closed to public

41(1)       A hearing before a hearing panel shall be closed to the public, but any member of the public may attend the hearing with the consent of the vulnerable person or the person for whom an application for the appointment of a substitute decision maker is made.

Ban on publication and broadcast

41(2)       No person shall publish in a newspaper or other publication, or broadcast on radio or television, the name or other identifying information of

(a) the vulnerable person; or

(b) the person for whom an application for the appointment of a substitute decision maker is made;

who is the subject of a hearing before a hearing panel.

Appointment for other area of decision making

42(1)       If, during the course of a hearing the hearing panel determines that it may be in the interests of the person for whom the application is made to appoint a substitute decision maker for an area of decision making in addition to the area requested in the application, the hearing panel shall report the matter to the commissioner immediately.

Review of need for appointment in other area

42(2)       The commissioner shall review the report and make a preliminary investigation in accordance with section 49 or 84, as the case may be, to determine whether to refer the matter reported under subsection (1) to the hearing panel.

Referral to same hearing panel

42(3)       If the commissioner refers the matter to the hearing panel, the commissioner shall give notice of the referral to the persons who were provided with notice of the hearing and any other person the commissioner considers appropriate.

Division 3 or 4 applies

42(4)       A referral to a hearing panel under subsection (3) shall be considered to be an application for the appointment of a substitute decision maker in that other area of decision making, and the provisions of Division 3 or 4, as the case may be, apply with necessary modifications to the referral.

Recommendations by hearing panel

43          At the conclusion of a hearing, the hearing panel shall make written recommendations to the commissioner, with reasons, with regard to the matters referred by the commissioner to the hearing panel.

Recommendations considered

44(1)       Upon receiving the recommendations of the hearing panel, the commissioner

(a) shall consider the recommendations and any documents considered by the hearing panel; and

(b) may make such inquiries that the commissioner considers appropriate of

(i) any person who provided information to the hearing panel, or

(ii) any other person.

Opportunity to be heard

44(2)       If the commissioner makes an inquiry under clause (1)(b), the commissioner shall, before making a decision with respect to the application,

(a) inform those persons who were given notice of the hearing and participated in it, of the nature of the information; and

(b) give them an opportunity to explain or refute it.

Documents forwarded to commissioner

45          In addition to the recommendations, the presiding member shall forward to the commissioner any documents considered by the hearing panel.

DIVISION 3

SUBSTITUTE DECISION MAKER FOR PERSONAL CARE

APPLICATION FOR SUBSTITUTE DECISION MAKER FOR PERSONAL CARE

Incapacity for personal care

46          For the purposes of this Act, a person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, or his or her own physical, emotional, psychological, residential, educational, vocational or social needs, or similar needs, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

Application for appointment

47(1)       Any person may apply to the commissioner for the appointment of a substitute decision maker for personal care for a person the applicant believes to be a vulnerable person and in need of a substitute decision maker for personal care.

Application in writing

47(2)       An application shall be made in writing in a form approved by the commissioner.

Applications in both areas of decision making

47(3)       An application may be accompanied by an application for the appointment of a substitute decision maker for property for the same person.

Copy of application to person

47(4)       The commissioner shall give the person for whom the application is made a copy of the application.

No application if committee

48          No application may be made for a person for whom a committee of both property and personal care has been appointed under The Mental Health Act.

S.M. 1998, c. 36, s. 136.

Commissioner's preliminary investigation

49           On receiving an application under subsection 47(1), the commissioner shall make a preliminary investigation as to

(a) whether the person for whom the application is made appears to be a vulnerable person;

(b) whether the person for whom the application is made appears to have a support network and reasonable efforts have been made to involve the support network with the person; and

(c) whether the person for whom the application is made

(i) appears to be incapable of personal care by himself or herself or with the involvement of a support network, and

(ii) appears to need decisions to be made on his or her behalf with respect to personal care.

Decision to dismiss application

50(1)       If the commissioner determines, after a preliminary investigation, that the person for whom the application is made is not a vulnerable person, the commissioner shall dismiss the application.

Decision to request individual plan

50(2)       If the commissioner determines, after a preliminary investigation, that the person for whom the application is made appears to be a vulnerable person but the criteria set out in clauses 49(b) and (c) have not been met, the commissioner shall dismiss the application but may request the executive director

(a) to take steps to involve a support network with the vulnerable person; or

(b) to develop or review an individual plan for the vulnerable person under Part 2.

Decision to refer application to hearing panel

50(3)       If the commissioner determines, after a preliminary investigation, that all the criteria set out in section 49 have been met, the commissioner shall establish a hearing panel in accordance with section 35 and refer the application to the hearing panel.

Notice of decision

51(1)       The commissioner shall give notice of his or her decision under section 50 to

(a) the person for whom the application is made;

(b) the applicant;

(c) the proposed substitute decision maker for personal care for the person, if any;

(d) any currently-appointed substitute decision maker for the person;

(e) the person's committee, if any;

(f) the person's nearest relative; and

(g) any other person, including a member of the vulnerable person's support network, the commissioner considers appropriate.

Reasons upon request

51(2)       At the request of a person notified of a decision under subsection (1), the commissioner shall provide written reasons for the decision.

Notice of hearing by hearing panel

51(3)       When an application is referred to a hearing panel under subsection 50(3), the commissioner shall give notice of the hearing to the persons given notice under subsection (1).

Hearing by hearing panel

52          The hearing panel shall hold a hearing in accordance with Division 2 for the purpose of making recommendations to the commissioner

(a) as to whether the criteria set out in section 49 respecting the appointment of a substitute decision maker for personal care for the person have been met; and

(b) if the criteria set out in section 49 have been met, as to

(i) the selection of an appropriate substitute decision maker for personal care for the person,

(ii) the powers the substitute decision maker should be granted, and

(iii) the duration and any terms and conditions of the appointment of the substitute decision maker.

APPOINTMENT OF SUBSTITUTE DECISION MAKER FOR PERSONAL CARE

Decision to appoint

53(1)       The commissioner shall appoint a substitute decision maker for personal care for a person if, after considering the recommendations of the hearing panel, the commissioner determines that

(a) the person for whom the application is made

(i) is a vulnerable person,

(ii) is incapable of personal care by himself or herself or with the involvement of a support network, and

(iii) needs decisions to be made on his or her behalf with respect to personal care; and

(b) the appointment of a substitute decision maker for personal care is reasonable in the circumstances.

Notice of decision

53(2)       The commissioner shall give notice of a decision under subsection (1) to the persons given notice under subsection 51(1) and to the substitute decision maker who is appointed if that person is not otherwise given notice under that subsection.

Decision not to appoint

53(3)       If the commissioner determines, after considering the recommendations of the hearing panel, that not all the criteria set out in subsection (1) are met, the commissioner shall

(a) dismiss the application; and

(b) give notice of the decision to the persons given notice under subsection 51(1).

Reasons upon request

53(4)       At the request of any person given notice under this section, the commissioner shall provide written reasons for his or her decision.

Persons eligible for appointment

54(1)       The commissioner may appoint as a substitute decision maker for personal care

(a) any adult individual who consents to act as a substitute decision maker for personal care and who, in the opinion of the commissioner,

(i) is apparently capable, suitable and able to act as the substitute decision maker, and

(ii) will not be in a position where his or her interests conflict with the vulnerable person's interests; or

(b) the Public Guardian and Trustee, if there is no individual who meets the criteria in clause (a).

Conflict of interest

54(2)       For the purpose of subclause (1)(a)(ii),

(a) a service provider for the vulnerable person is in a position of conflict unless the service provider is

(i) a volunteer, or

(ii) a student in a training placement;

(b) a person is not in a position of conflict by reason only of the fact that the person is

(i) the vulnerable person's substitute decision maker for property,

(ii) the vulnerable person's committee,

(iii) a proxy for the vulnerable person,

(iv) a relative of the vulnerable person, or

(v) a potential beneficiary of the vulnerable person.

S.M. 2013, c. 46, s. 46.

Two or more substitute decision makers

55(1)       With the consent of the persons, the commissioner may appoint two or more persons to act as substitute decision makers for personal care, jointly or otherwise.

Joint substitute decision makers

55(2)       In the event of the death of a joint substitute decision maker for personal care, the surviving substitute decision maker may exercise all the powers that had been granted jointly.

Alternate substitute decision maker

55(3)       The commissioner may appoint an alternate substitute decision maker for personal care to act

(a) in the event of the death of the substitute decision maker for personal care; or

(b) during the temporary absence of the substitute decision maker for personal care.

Effective date of appointment

56          An appointment of a substitute decision maker for personal care is effective on the date it is made.

POWERS OF SUBSTITUTE DECISION MAKER FOR PERSONAL CARE

Powers granted must relate to incapacity

57(1)       When appointing a substitute decision maker for personal care, the commissioner shall

(a) determine the areas of personal care in which the vulnerable person is incapable; and

(b) grant only those powers to the substitute decision maker that relate to the areas of incapacity for only as long as appropriate.

Powers that may be granted

57(2)       In the appointment of a substitute decision maker for personal care, the commissioner shall specify which of the following powers are granted:

(a) to decide where, with whom and under what conditions the vulnerable person is to live;

(b) to give, refuse or withdraw consent to health care on the vulnerable person's behalf;

(c) to decide whether the vulnerable person should work, and if so, the nature or type of work, for whom the vulnerable person is to work, and other related matters;

(d) to decide whether the vulnerable person should participate in any educational, vocational, training or lifeskills programs, and, if so, the nature and extent of the participation and other related matters;

(e) to decide whether the vulnerable person should participate in any social or recreational activities and, if so, the nature and extent of the participation and other related matters;

(f) to commence, continue, settle or defend any claim or proceeding that relates to the vulnerable person other than a claim or proceeding that relates to the vulnerable person's property;

(g) to make decisions about daily living on behalf of the vulnerable person, including decisions regarding support services under Part 2;

(h) any other power specified by the commissioner that is reasonably necessary for the vulnerable person's personal care;

(i) any other power that may be specified in the regulations.

Terms and conditions

57(3)       In the appointment of the substitute decision maker for personal care, the commissioner may, in accordance with this Act, impose any terms and conditions that the commissioner considers appropriate.

Duration of appointment

57(4)       In the appointment of the substitute decision maker for personal care, the commissioner shall specify the duration of the appointment, which shall not be longer than five years.

Purchase of necessaries

58(1)       Subject to any limitation contained in the appointment, a substitute decision maker for personal care may purchase necessaries for the vulnerable person without the vulnerable person's consent or the consent of his or her substitute decision maker for property or committee, if any.

Reimbursement for necessaries purchased

58(2)       When a substitute decision maker for personal care purchases necessaries for the vulnerable person

(a) the vulnerable person is liable to pay for them or reimburse the substitute decision maker for personal care for any money spent; or

(b) if there is a substitute decision maker for property, or a committee of the person's estate, that person shall, out of the estate, pay for the necessaries or reimburse the substitute decision maker for personal care for any money spent.

LIMITATIONS ON POWERS

Limitation re custody and divorce

59          A substitute decision maker for personal care has no power

(a) to change arrangements in respect of custody of or access to a child; or

(b) to commence divorce proceedings on behalf of the vulnerable person;

unless the commissioner has, at the request of the substitute decision maker, specifically granted that power.

Limitation on settlement of claims or proceedings

60(1)       A substitute decision maker for personal care may not settle a claim or proceeding on behalf of a vulnerable person, whether or not legal proceedings have been commenced, without the approval of the court.

Exception for Public Guardian and Trustee

60(2)       Subsection (1) does not apply when the substitute decision maker is the Public Guardian and Trustee.

S.M. 2013, c. 46, s. 46.

Matters excluded absolutely

61          A substitute decision maker for personal care has no power to give consent on the vulnerable person's behalf to

(a) medical treatment for the primary purpose of research;

(b) sterilization that is not medically necessary for the protection of the vulnerable person's health;

(c) the removal of tissue for transplant or medical education or medical research;

(d) voluntary admission to a psychiatric facility;

(e) the adoption or guardianship of a child; or

(f) participation in an activity or project whose primary purpose is research.

POWER TO DECIDE WHERE THE VULNERABLE PERSON LIVES

Apprehension order

62(1)       A substitute decision maker for personal care may make an application to a justice requesting an order for the apprehension of the vulnerable person if

(a) the substitute decision maker has the power under clause 57(2)(a) to decide where, with whom and under what conditions the vulnerable person is to live; and

(b) the vulnerable person refuses to live where, with whom or under the conditions that the substitute decision maker has decided.

Procedure

62(2)       A justice who receives an application under subsection (1) shall, if the justice considers it appropriate to do so, hear and consider the allegation of the substitute decision maker and the evidence of any witnesses without notice to the person named in the application.

Order

62(3)       After a hearing under subsection (2), the justice may issue an order authorizing the substitute decision maker, a peace officer or any other person named in the order to enter any place specified in the order and apprehend the vulnerable person if the justice has reasonable grounds to believe that

(a) the applicant is the vulnerable person's substitute decision maker and has the power set out in clause 57(2)(a); and

(b) the vulnerable person is refusing to live where, with whom or under the conditions that the substitute decision maker has decided.

Authority to enter

62(4)       An order under subsection (3) is sufficient authority for the person named in the order to enter, using reasonable force if necessary, any place specified in the order.

Peace officer to assist

62(5)       A person named in an order under subsection (3) may request the assistance of a peace officer in taking action under this section, and the peace officer shall provide such assistance.

Copy of order to commissioner

62(6)       The applicant shall provide the commissioner with a copy of an order made under this section.

Placement in developmental centre

63(1)       A substitute decision maker for personal care who has the power to decide where a vulnerable person is to live under clause 57(2)(a) shall not place a vulnerable person in a developmental centre without first obtaining the approval of the court.

Court approval for placement

63(2)       The approval of the court may be sought by filing a notice of application in the court.

Service of notice of application

63(3)       The applicant shall serve the following persons with the notice of application:

(a) the vulnerable person;

(b) any currently-appointed substitute decision maker for the vulnerable person;

(c) the vulnerable person's committee, if any;

(d) the vulnerable person's nearest relative.

Copy of application to commissioner

63(4)       The applicant shall provide the commissioner with a copy of the notice of application.

Parties

63(5)       The parties to the application are

(a) the applicant;

(b) those persons served with the notice of application under subsection (3); and

(c) any other person, including a member of the vulnerable person's support network, with leave of the court.

Grounds for approval

63(6)       The court may, by order, approve the placement of the vulnerable person to a developmental centre if it is satisfied that

(a) the applicant has made reasonable efforts to find a placement for the vulnerable person other than in a developmental centre, and no suitable alternative placement is available;

(b) it is in the best interests of the vulnerable person to be placed in a developmental centre; and

(c) there is a developmental centre willing to accept the vulnerable person.

Copy of court order to commissioner

63(7)       The applicant shall provide the commissioner with a copy of an order made under subsection (6).

Commissioner's approval of temporary placement

64(1)       Despite section 63, on application by a substitute decision maker for personal care who has been granted power under clause 57(2)(a), the commissioner may approve the temporary placement of a vulnerable person in a developmental centre for up to three weeks in a year if

(a) the purpose of the placement is to provide respite care for the vulnerable person;

(b) the vulnerable person requires a level of care that is not readily available outside a developmental centre; and

(c) there is a developmental centre willing to accept the vulnerable person.

Notice of decision

64(2)       The commissioner shall give notice of a decision under subsection (1) to the applicant and the vulnerable person.

Leaving developmental centre with consent

65          A substitute decision maker for personal care may consent to a vulnerable person leaving a developmental centre and residing elsewhere.

Returning to developmental centre

66          If a vulnerable person, with the consent of his or her substitute decision maker for personal care, leaves a developmental centre and resides elsewhere for six months or more, the substitute decision maker shall not return the vulnerable person to the developmental centre without the approval of the court under section 63.

Right to leave developmental centre

67          A vulnerable person may leave a developmental centre if there is no substitute decision maker appointed who has the power under clause 57(2)(a) to decide where that vulnerable person lives.

POWER TO MAKE HEALTH CARE DECISIONS

Limitation on health care power

68          The commissioner shall not grant, and a substitute decision maker for personal care does not have, power to give, refuse or withdraw consent to health care under clause 57(2)(b) if the vulnerable person, when capable, made a health care directive that

(a) appoints a proxy to exercise that power; or

(b) expresses a decision of the vulnerable person respecting the proposed health care.

Right to information re health care

69(1)       A substitute decision maker for personal care who has been granted the power to make health care decisions under clause 57(2)(b) has the right to be provided with all of the information necessary to make informed health care decisions on behalf of the vulnerable person.

Right applies despite restrictions

69(2)       Subsection (1) applies despite any restriction concerning the disclosure of confidential health information, in legislation or elsewhere.

DUTIES OF SUBSTITUTE DECISION MAKER FOR PERSONAL CARE

Compliance with Act and appointment

70          A substitute decision maker for personal care shall comply with this Act and any terms and conditions of his or her appointment.

Good faith

71          A substitute decision maker for personal care shall exercise his or her powers and perform his or her duties diligently and in good faith.

Provide explanations

72          A substitute decision maker for personal care shall make reasonable efforts to explain to the vulnerable person what the powers and duties of the substitute decision maker for personal care are.

Foster independence

73          A substitute decision maker for personal care shall seek to foster the vulnerable person's independence.

Encourage participation

74          A substitute decision maker for personal care shall encourage the vulnerable person to participate, to the extent of his or her abilities, in the substitute decision maker's decisions about his or her personal care.

Least restrictive and intrusive course of action

75          A substitute decision maker for personal care shall choose the least restrictive and least intrusive course of action that is available and is appropriate in any particular situation.

Decisions on person's behalf

76(1)        In making decisions on the vulnerable person's behalf, a substitute decision maker for personal care shall be guided by the following considerations:

(a) the vulnerable person's wishes;

(b) the vulnerable person's values and beliefs, if the substitute decision maker has no knowledge of the vulnerable person's wishes and has used reasonable diligence to ascertain whether there are such wishes;

(c) the best interests of the vulnerable person, if

(i) the substitute decision maker has no knowledge of the vulnerable person's wishes, values and beliefs, and has used reasonable diligence to ascertain whether there are such wishes, values or beliefs, or

(ii) the substitute decision maker cannot follow those wishes, values or beliefs without endangering the health or safety of the vulnerable person or another person.

Best interests re health care

76(2)       A substitute decision maker for personal care who has the power to make health care decisions under clause 57(2)(b) shall consider the following factors when determining the vulnerable person's best interests under clause (1)(c):

(a) whether the vulnerable person's condition or well-being is likely to be improved by the proposed health care;

(b) whether the vulnerable person's condition or well-being is likely to improve without the proposed health care;

(c) whether the benefit the vulnerable person is expected to obtain from the proposed health care outweighs the risk of harm to him or her;

(d) whether less restrictive or less intrusive health care is a reasonable alternative to the health care proposed.

RELATED MATTERS

Information respecting vulnerable person

77          The commissioner may provide a substitute decision maker for personal care with any information in his or her possession respecting the vulnerable person that is relevant to the exercise of the substitute decision maker's powers.

Right to information

78          A substitute decision maker for personal care

(a) has the same right of access to information relating to matters for which he or she has authority as the vulnerable person would have if capable; and

(b) may consent to the release of that information to another person.

Immunity

79          No proceeding for damages shall be commenced against a substitute decision maker for personal care for anything done or omitted in good faith in connection with his or her powers and duties under this Act.

No compensation

80          A substitute decision maker for personal care is not entitled to receive compensation or remuneration for acting as a substitute decision maker.

DIVISION 4

SUBSTITUTE DECISION MAKER FOR PROPERTY

APPLICATION FOR SUBSTITUTE DECISION MAKER FOR PROPERTY

Incapacity to manage property

81          For the purposes of this Act, a person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

Application for appointment

82(1)       Any person may apply to the commissioner for the appointment of a substitute decision maker for property for a person the applicant believes to be a vulnerable person and in need of a substitute decision maker for property.

Application in writing

82(2)       An application shall be made in writing in a form approved by the commissioner.

Applications in both areas of decision making

82(3)       An application may be accompanied by an application for the appointment of a substitute decision maker for personal care for the same person.

Copy of application to person

82(4)       The commissioner shall give the person for whom the application is made a copy of the application.

No application if committee

83          No application may be made for a person for whom a committee has been appointed under The Mental Health Act.

S.M. 1998, c. 36, s. 136.

Commissioner's preliminary investigation

84          On receiving an application under subsection 82(1), the commissioner shall make a preliminary investigation as to

(a) whether the person for whom an application is made appears to be a vulnerable person;

(b) whether the person for whom the application is made appears to have a support network and reasonable efforts have been made to involve the support network with the person; and

(c)  whether the person for whom the application is made

(i) appears to be incapable of managing his or her property by himself or herself or with the involvement of a support network, and

(ii) appears to need decisions to be made on his or her behalf with respect to his or her property.

Decision to dismiss application

85(1)       If the commissioner determines, after a preliminary investigation, that the person for whom the application is made is not a vulnerable person, the commissioner shall dismiss the application.

Decision to request individual plan

85(2)       If the commissioner determines, after a preliminary investigation, that the person for whom the application is made appears to be a vulnerable person, but the criteria set out in clauses 84(b) and (c) have not been met, the commissioner shall dismiss the application but may request the executive director

(a) to take steps to involve a support network with the vulnerable person; or

(b) to develop or review an individual plan for the vulnerable person under Part 2.

Decision to refer application to hearing panel

85(3)       If the commissioner determines, after a preliminary investigation, that all the criteria set out in section 84 have been met, the commissioner shall establish a hearing panel in accordance with section 35 and refer the application to the hearing panel.

Notice of decision

86(1)       The commissioner shall give notice of his or her decision under section 85 to

(a) the person for whom the application is made;

(b) the applicant;

(c) the proposed substitute decision maker for property for the person, if any;

(d) any currently-appointed substitute decision maker for the person;

(e) the person's committee, if any;

(f) the person's nearest relative; and

(g) any other person, including a member of the vulnerable person's support network, the commissioner considers appropriate.

Reasons upon request

86(2)       At the request of a person notified of a decision under subsection (1), the commissioner shall provide written reasons for the decision.

Notice of hearing by hearing panel

86(3)       When an application is referred to a hearing panel under subsection 85(3), the commissioner shall give notice of the hearing to the persons given notice under subsection (1).

Hearing by hearing panel

87          The hearing panel shall hold a hearing in accordance with Division 2 for the purpose of making recommendations to the commissioner

(a) as to whether the criteria set out in section 84 respecting the appointment of a substitute decision maker for property for the person have been met; and

(b) if the criteria set out in section 84 have been met, as to

(i) the selection of an appropriate substitute decision maker for property for the person,

(ii) the powers the substitute decision maker should be granted, and

(iii) the duration and any terms and conditions of the appointment of the substitute decision maker.

APPOINTMENT OF SUBSTITUTE DECISION MAKER FOR PROPERTY

Decision to appoint

88(1)       The commissioner shall appoint a substitute decision maker for property for a person with respect to all or any part of the person's property if, after considering the recommendations of the hearing panel, the commissioner determines that

(a) the person for whom the application is made

(i) is a vulnerable person,

(ii) is incapable of managing his or her property by himself or herself or with the involvement of a support network, and

(iii) needs decisions to be made on his or her behalf with respect to his or her property; and

(b) the appointment of a substitute decision maker for property is reasonable in the circumstances.

Notice of decision

88(2)       The commissioner shall give notice of a decision under subsection (1) to the persons given notice under subsection 86(1) and to the substitute decision maker who is appointed if that person is not otherwise given notice under that subsection.

Decision not to appoint

88(3)       If the commissioner determines, after considering the recommendations of the hearing panel, that not all the criteria set out in subsection (1) are met, the commissioner shall

(a) dismiss the application; and

(b) give notice of the decision to the persons given notice under subsection 86(1).

Reasons upon request

88(4)       At the request of any person given notice under this section, the commissioner shall provide written reasons for his or her decision.

Persons eligible for appointment

89(1)       The commissioner may appoint as a substitute decision maker for property

(a) any adult individual who consents to act as a substitute decision maker for property and who, in the opinion of the commissioner,

(i) is apparently capable, suitable and able to act as the substitute decision maker, and

(ii) will not be in a position where his or her interests conflict with the vulnerable person's interests;

(b) a trust company registered and authorized to carry on business in Manitoba; or

(c) the Public Guardian and Trustee, if there is no individual who meets the criteria in clause (a).

Appointment of non-residents

89(2)       An individual who does not reside in Manitoba shall not be appointed as a substitute decision maker for property, except as provided in subsection 90(2).

Conflict of interest

89(3)       For the purpose of subclause (1)(a)(ii),

(a) a service provider for the vulnerable person is in a position of conflict unless the service provider is

(i) a volunteer, or

(ii) a student in a training placement;

(b) a person is not in a position of conflict by reason only of the fact that the person is

(i) the vulnerable person's substitute decision maker for personal care,

(ii) the vulnerable person's committee,

(iii) a proxy for the vulnerable person,

(iv) a relative of the vulnerable person, or

(v) a potential beneficiary of the vulnerable person.

S.M. 2013, c. 46, s. 46.

Two or more substitute decision makers

90(1)       With the consent of the persons, the commissioner may appoint two or more persons to act as substitute decision makers for property, jointly or otherwise.

Residency requirement where two or more substitute decision makers

90(2)       When appointing two or more substitute decision makers, the commissioner may appoint an individual who does not reside in Manitoba as a substitute decision maker for property if at least one of the other persons to be appointed is

(a) an individual who resides in Manitoba; or

(b) a trust company registered and authorized to carry on business in Manitoba.

Joint substitute decision makers

90(3)       In the event of the death of a joint substitute decision maker for property, the surviving substitute decision maker may exercise all the powers that had been granted jointly.

Alternate substitute decision maker

90(4)       The commissioner may appoint an alternate substitute decision maker for property to act

(a) in the event of the death of the substitute decision maker for property; or

(b) during the temporary absence of the substitute decision maker for property.

Effective date of appointment

91          An appointment is effective on the later of

(a) the date it is made; or

(b) the date on which the substitute decision maker for property provides any bond or other security required under clause 92(4)(b).

POWERS OF SUBSTITUTE DECISION MAKER FOR PROPERTY

Powers granted must relate to incapacity

92(1)       When appointing a substitute decision maker for property, the commissioner shall

(a) determine the areas of property management in which the vulnerable person is incapable;

(b) grant only those powers to the substitute decision maker that relate to those areas of incapacity for only as long as appropriate; and

(c) specify if the powers granted relate to all or to a part of the vulnerable person's property.

Powers that may be granted

92(2)       In the appointment of a substitute decision maker for property, the commissioner shall specify which of the following powers are granted:

(a) to purchase, sell, dispose of, encumber or transfer personal property;

(b) to purchase, sell, dispose of, mortgage, encumber or transfer real property;

(c) to transfer property held in trust by the vulnerable person, either solely or jointly with another, to the person beneficially entitled to it;

(d) to exchange or partition property or give or receive money for equality of exchange or partition;

(e) to grant or accept leases of real or personal property, or give a consent to a transfer or assignment of a lease, to surrender a lease, with or without accepting a new lease, or accept a surrender of a lease;

(f) to receive, deposit and invest money;

(g) to draw, accept and endorse bills of exchange and promissory notes, endorse bonds, debentures, coupons and other negotiable instruments and securities, and assign choses in action;

(h) to give or receive a notice on behalf of a vulnerable person that relates to his or her property;

(i) to carry on the vulnerable person's trade or business;

(j) to exercise a power or give a consent required for the exercise of a power vested in the vulnerable person;

(k) to exercise a right or obligation to elect, belonging to or imposed on the vulnerable person;

(l) to execute any documents on behalf of the vulnerable person that are necessary to comply with The Homesteads Act;

(m) to commence, continue, settle or defend any claim or proceeding respecting the property of the vulnerable person;

(n) to compromise or settle a debt owing by or to the vulnerable person;

(o) to make expenditures from the vulnerable person's property for gifts, donations or loans;

(p) any other power specified by the commissioner that is reasonably necessary for the management of the vulnerable person's property;

(q) any other power that may be specified in the regulations.

Authority of substitute decision maker

92(3)       A substitute decision maker for property has the right

(a) to take possession and control of the real and personal property under his or her power; and

(b) to manage, handle and administer it to the extent of his or her power.

Terms and conditions

92(4)       In the appointment of the substitute decision maker for property, the commissioner

(a) may, in accordance with this Act, impose any terms and conditions that the commissioner considers appropriate; and

(b) may, as a condition of the appointment, require that the person appointed provide to the commissioner a bond or other security in such form and amount and upon such terms and conditions as may be prescribed in the regulations.

Exception re trust company and Public Guardian and Trustee

92(5)       Clause (4)(b) does not apply if the substitute decision maker for property is a trust company or the Public Guardian and Trustee.

Duration of appointment

92(6)       In the appointment of the substitute decision maker for property, the commissioner shall specify the duration of the appointment, which shall not be longer than five years.

S.M. 2013, c. 46, s. 46.

LIMITATION ON POWERS

Limitation on settlement of claims or proceedings

93(1)       A substitute decision maker for property may not settle a claim or proceeding on behalf of a vulnerable person, whether or not legal proceedings have been commenced, without the approval of the court.

Exception for Public Guardian and Trustee

93(2)       Subsection (1) does not apply if the substitute decision maker is the Public Guardian and Trustee.

S.M. 2013, c. 46, s. 46.

RELATED MATTERS

Information respecting vulnerable person

94          The commissioner may provide a substitute decision maker for property with any information in his or her possession respecting the vulnerable person that is relevant to the exercise of the substitute decision maker's powers.

Right to information re property

95          A substitute decision maker for property

(a) has the same right of access to information relating to matters for which he or she has authority as the vulnerable person would have if capable; and

(b) may consent to the release of that information to another person.

Delivery of property to substitute decision maker

96          A person who has custody or control of property which belongs to a vulnerable person and which is under the power of a substitute decision maker for property shall on request

(a) provide to the substitute decision maker for property any document, record or information in his or her possession or under his or her control respecting the property; and

(b) deliver the property to the substitute decision maker for property.

Compensation

97          A substitute decision maker for property may receive from the property of the vulnerable person, compensation for services rendered where the substitute decision maker

(a) is the Public Guardian and Trustee; or

(b) has obtained prior approval respecting the proposed compensation, including approval of the amount, from the commissioner.

S.M. 2013, c. 46, s. 46.

DUTIES OF SUBSTITUTE DECISION MAKER FOR PROPERTY

Compliance with Act and appointment

98          A substitute decision maker for property shall comply with this Act and any terms and conditions of his or her appointment.

Fiduciary duties

99          A substitute decision maker for property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the benefit of the vulnerable person.

Accounts

100         A substitute decision maker for property shall keep accounts of all transactions involving the vulnerable person's property.

Provide explanations

101         A substitute decision maker for property shall make reasonable efforts to explain to the vulnerable person what the powers and duties of the substitute decision maker for property are.

Foster independence

102         A substitute decision maker for property shall seek to foster the vulnerable person's independence.

Encourage participation

103         A substitute decision maker for property shall encourage the vulnerable person to participate, to the extent of his or her abilities, in the substitute decision maker's decisions about the vulnerable person's property.

Considerations in making decisions

104         In making decisions on the vulnerable person's behalf, a substitute decision maker for property shall

(a) take into consideration the vulnerable person's wishes, values and beliefs, to the extent that they can be ascertained; and

(b) act in the best interests of the vulnerable person and the vulnerable person's estate.

Standard of care where no compensation

105(1)      A substitute decision maker for property who does not receive compensation for managing the property shall exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs.

Standard of care where compensation

105(2)      A substitute decision maker for property who receives compensation for managing the property shall exercise the degree of care, diligence and skill that a person in the business of managing the property of others is required to exercise.

Required expenditures

106(1)      Subject to any terms and conditions in the appointment or in the regulations, a substitute decision maker for property shall make the following expenditures from the vulnerable person's property:

(a) expenditures that are reasonably necessary for the vulnerable person's support, education and care;

(b) expenditures that are reasonably necessary for the support, education and care of the vulnerable person's dependents;

(c) expenditures that are necessary to satisfy the vulnerable person's other legal obligations.

Guiding principles

106(2)      The following rules apply to expenditures under subsection (1):

(a) the value of the property, the accustomed standard of living of the vulnerable person and his or her dependants and the nature of other legal obligations shall be taken into account;

(b) expenditures under clause (1)(b) may be made only if the property is and will remain more than sufficient to provide for expenditures under clause (1)(a);

(c) expenditures under clause (1)(c) may be made only if the property is and will remain more than sufficient to provide for expenditures under clauses (1)(a) and (b).

Liability for damages

107(1)      A substitute decision maker for property is liable for damages resulting from a breach of his or her duty under this Act.

Relief from liability

107(2)      If a court is satisfied that a substitute decision maker for property who has committed a breach of duty has nevertheless acted honestly, reasonably and diligently, the court may relieve the substitute decision maker for property from all or part of the liability.

ACCOUNTING BY SUBSTITUTE DECISION MAKER FOR PROPERTY

Filing of inventory on appointment

108(1)      A substitute decision maker for property shall

(a) within six months after the effective date of the appointment or sooner if required by the commissioner, file with the commissioner, in accordance with the regulations, a true inventory and account of the vulnerable person's property, debts and liabilities which are under the power of the substitute decision maker; and

(b) immediately file with the commissioner a revised inventory and account, in accordance with the regulations, if any property, debt or liability is discovered after the filing of an inventory and account under clause (a).

Accounting

108(2)      A substitute decision maker for property shall, at the request of the commissioner, file with the commissioner an accounting of the property, debts, liabilities, receipts and disbursements of the vulnerable person, in accordance with the regulations.

Copy of inventory or accounting

108(3)      A substitute decision maker for property shall give a copy of an inventory or accounting prepared under this section to

(a) the vulnerable person; and

(b) the vulnerable person's substitute decision maker for personal care;

on the request of that person.

Accounting on expiration or termination of appointment

109(1)      A substitute decision maker for property whose appointment expires or is suspended or terminated for any reason shall provide, in accordance with the regulations, an accounting of the property, debts, liabilities, receipts and disbursements of the vulnerable person, to

(a) the commissioner;

(b) the vulnerable person;

(c) any currently-appointed substitute decision maker for the vulnerable person; and

(d) any other person the commissioner considers appropriate.

Time for providing accounting

109(2)      An accounting under subsection (1) shall be provided within 30 days of the expiration, suspension or termination of the appointment, or within such further time as the commissioner may allow.

Delivery of property

109(3)      A substitute decision maker for property whose appointment expires, is suspended or terminated for any reason, shall as soon as reasonably possible deliver any property of the vulnerable person in his or her custody or under his or her control and any relevant documents, records or information to

(a) the vulnerable person; or

(b) the vulnerable person's new substitute decision maker for property, if any.

Additional information

110         In addition to the requirements of sections 108 and 109, the commissioner may require a substitute decision maker for property to provide such further information or documentation as the commissioner considers necessary.

Public Guardian and Trustee as substitute decision maker

111(1)      The requirements of section 108, subsections 109(1) and (2), and section 110 do not apply if the substitute decision maker for property is the Public Guardian and Trustee.

Accounting by Public Guardian and Trustee

111(2)      If the Public Guardian and Trustee is the substitute decision maker for property, and his or her appointment expires, is suspended or is terminated for any reason, the Public Guardian and Trustee shall provide an accounting of the property, debts, liabilities, receipts and disbursements of the vulnerable person to

(a) the vulnerable person; and

(b) any substitute decision maker for property for the vulnerable person who is appointed in the place of the Public Guardian and Trustee.

S.M. 2013, c. 46, s. 46.

ACCOUNTING ON DEATH OF SUBSTITUTE DECISION MAKER OR VULNERABLE PERSON

Accounting on death of substitute decision maker

112         On the death of a substitute decision maker for property, the executor under the will or the administrator of the estate of the substitute decision maker for property shall comply with the requirements of sections 109 and 110.

Accounting on death of vulnerable person

113(1)      On the death of a vulnerable person, his or her substitute decision maker for property shall

(a) provide an accounting to the executor under the will or to the administrator of the estate of the vulnerable person; and

(b) deliver any property of the vulnerable person in his or her custody or under his or her control to the executor or administrator.

Powers of Public Guardian and Trustee on vulnerable person's death

113(2)      If the Public Guardian and Trustee is the substitute decision maker for property for a vulnerable person who dies, until notified of the appointment of an executor or administrator for the vulnerable person the Public Guardian and Trustee may, with respect to property which is under the power of the Public Guardian and Trustee,

(a) exercise the powers of an executor under the will or an administrator of the estate of the vulnerable person for the purpose of paying the vulnerable person's debts and funeral expenses and gathering in the assets of the vulnerable person's estate; and

(b) commence, continue or defend any claim or proceeding on behalf of the estate of the vulnerable person.

S.M. 2013, c. 46, s. 46.

APPOINTMENT FOR PERSON RESIDING OUTSIDE MANITOBA

Application for appointment re non-resident

114(1)      Any person may apply to the commissioner in writing, in a form approved by the commissioner, for the appointment of a substitute decision maker for property for a person who

(a) is not a resident of Manitoba; and

(b) has real or personal property in Manitoba.

Decision to appoint substitute decision maker for non-resident

114(2)      Where the commissioner determines that

(a) the person for whom the application is made under subsection (1) is a vulnerable person; and

(b) there has been a determination, in accordance with the laws of another province or territory of Canada or of any other jurisdiction designated by regulation, that the person for whom the application is made is incapable of managing his or her property;

the commissioner may, without referring the matter to a hearing panel, appoint a person who meets the eligibility criteria for a substitute decision maker set out in this Division to be the substitute decision maker for property in respect of the property in Manitoba.

Terms and conditions of appointment

114(3)      The commissioner may, in accordance with this Act, confer such powers and impose such terms and conditions on a substitute decision maker appointed under subsection (2) as the commissioner considers appropriate.

Notice of appointment

114(4)      The commissioner shall give notice of an appointment under subsection (2) to

(a) the vulnerable person;

(b) the applicant;

(c) the person appointed as the substitute decision maker for property; and

(d) any other person the commissioner considers appropriate.

DIVISION 5

GENERAL PROVISIONS RESPECTING SUBSTITUTE DECISION MAKERS

Effect of decision by substitute decision maker

115         Any decision made, action taken, consent given or thing done by a substitute decision maker in accordance with this Act with respect to any matter within his or her power is deemed for all purposes to have been decided, taken, given or done by the vulnerable person as though the vulnerable person were a capable adult.

Contracts binding

116         If a substitute decision maker enters into a contract on behalf of a vulnerable person in accordance with this Act, the contract is binding on the vulnerable person after the appointment expires, is suspended or is terminated, and on the vulnerable person's executors, administrators or heirs after the vulnerable person dies, in the same manner and to the same extent as if the vulnerable person had made the contract and had been an adult capable of making the contract.

Incidental powers

117         A substitute decision maker may do whatever is necessarily incidental to the exercise of any powers conferred on the substitute decision maker.

Completion of transactions entered into by vulnerable person

118(1)      A substitute decision maker has the power to complete a transaction that the vulnerable person entered into before becoming incapable.

Completion of transactions on death of vulnerable person

118(2)      Where there is no executor or administrator, or the executor or administrator fails to act, a substitute decision maker has the power to complete a transaction that the substitute decision maker entered into before the vulnerable person's death.

Mediation of disputes between substitute decision makers

119         If a dispute arises between two or more substitute decision makers for a vulnerable person in the performance of their duties, any of them may refer the dispute to the commissioner and the commissioner shall endeavour to mediate between the substitute decision makers and seek to resolve the dispute.

DIVISION 6

EMERGENCY APPOINTMENT, SUSPENSION AND VARIATION

EMERGENCY APPOINTMENT

Application for emergency appointment

120(1)      Any person may apply to the commissioner in writing for the appointment of an emergency substitute decision maker for personal care or for property for a person who does not have a substitute decision maker for that area of decision making.

Hearing panel not required

120(2)      The commissioner is not required to refer an application under subsection (1) to a hearing panel.

Emergency appointment

120(3)      On receiving an application or on his or her own initiative, the commissioner may appoint an emergency substitute decision maker for personal care or for property if the commissioner determines that

(a) there is immediate danger of death or serious harm or deterioration to the physical or mental health of the person, or of serious loss to his or her property;

(b) the person for whom the application is made

(i) is a vulnerable person,

(ii) is incapable of personal care or of managing his or her property, and

(iii) needs decisions to be made on his or her behalf on an emergency basis to prevent the danger described in clause (a); and

(c) prompt action is required in view of the nature and urgency of the situation.

Term of appointment

120(4)      An appointment under this section cannot exceed 30 days, but if while the emergency appointment is in effect an application for the appointment of a substitute decision maker is made under Division 3 or 4, the commissioner may extend the appointment under this section for an additional 30 days.

Powers of emergency substitute decision maker

121         An emergency substitute decision maker may be granted the same powers and is subject to the same duties, terms and conditions as a substitute decision maker appointed under Division 3 or 4.

Notice of decision

122(1)      The commissioner shall give notice of

(a) a decision appointing an emergency substitute decision maker for personal care to the persons listed in clauses 51(1)(a) to (f) and to the substitute decision maker who is appointed if that person is not otherwise given notice under one of those clauses; and

(b) a decision appointing an emergency substitute decision maker for property to the persons listed in clauses 86(1)(a) to (f) and to the substitute decision maker who is appointed if that person is not otherwise given notice under one of those clauses.

Reasons on request

122(2)      The commissioner shall provide written reasons for the decision when requested to do so by a person referred to in subsection (1).

EMERGENCY SUSPENSION AND TEMPORARY APPOINTMENT

Application for suspension and temporary appointment

123(1)      Any person may apply to the commissioner in writing for a suspension on an emergency basis of the appointment of a substitute decision maker for personal care or for property and the appointment of a temporary substitute decision maker.

Hearing panel not required

123(2)      The commissioner is not required to refer an application under subsection (1) to a hearing panel.

Suspension and temporary appointment

123(3)      On receiving an application or on his or her own initiative, the commissioner may suspend the appointment of a substitute decision maker and appoint a temporary substitute decision maker if the commissioner determines that

(a) there is an immediate danger of death or serious harm to, or deterioration in, the physical or mental health of a person who continues to be a vulnerable person, or of serious loss to that person's property;

(b) the substitute decision maker

(i) has failed to act in accordance with this Act or the terms and conditions of the appointment, or

(ii) has acted in an improper manner or in a manner that has endangered or may endanger the well-being or property of the vulnerable person;

(c) prompt action is required in view of the nature and urgency of the situation; and

(d) the vulnerable person needs decisions to be made on his or her behalf to prevent the danger described in clause (a).

Term of suspension and appointment

123(4)      A suspension and appointment under this section may be for such duration as the commissioner considers appropriate.

Powers of temporary substitute decision maker

124         A temporary substitute decision maker has the same powers and duties as did the substitute decision maker that he or she replaces, and the appointment is subject to the same terms and conditions as the original appointment.

Notice of decision

125(1)      The commissioner shall give notice of a decision under section 123 to the persons listed in clauses 51(1)(a) to (f) or 86(1)(a) to (f), as the case may be, and to the substitute decision maker who is appointed if that person is not otherwise given notice under one of those clauses.

Reasons on request

125(2)      The commissioner shall provide written reasons for the decision when requested to do so by a person referred to in subsection (1).

EMERGENCY VARIATION

Application for emergency variation

126(1)      Any person may apply to the commissioner in writing for an emergency variation of the appointment of a substitute decision maker for personal care or for property.

Hearing panel not required

126(2)      The commissioner is not required to refer an application under subsection (1) to a hearing panel.

Emergency variation of appointment

126(3)      On receiving an application or on his or her own initiative, the commissioner may, on an emergency basis, vary the appointment of a substitute decision maker if the commissioner determines that

(a) there is an immediate danger of death or serious harm to, or deterioration in, the physical or mental health of the vulnerable person, or of serious loss to his or her property; and

(b) prompt action is required to protect the person or property in view of the nature and urgency of the matter.

Limitation re personal care and property

126(4)      When making a decision to vary an appointment on an emergency basis, the commissioner shall not

(a) vary an appointment of a substitute decision maker for personal care to include powers respecting property; or

(b) vary an appointment of a substitute decision maker for property to include powers respecting personal care.

Term of appointment

126(5)      An emergency variation under this section cannot exceed 30 days, but if an application for the variation of an appointment is also made under Division 7, the commissioner may extend the variation under this section for a further 30 days.

Notice of decision

127(1)      The commissioner shall give notice of a decision under subsection 126(3) to the persons listed in clauses 51(1)(a) to (f) or 86(1)(a) to (f), as the case may be, and to the substitute decision maker who is appointed if that person is not otherwise given notice under one of those clauses.

Reasons on request

127(2)      The commissioner shall provide written reasons for the decision when requested to do so by a person referred to in subsection (1).

GENERAL REQUIREMENTS

Eligibility for appointment

128         A person cannot be appointed as a substitute decision maker under this Division unless he or she meets the eligibility criteria for a substitute decision maker set out in Division 3 or 4, as the case may be.

Powers to be specified

129         When a substitute decision maker is appointed under this Division, the commissioner shall, in accordance with this Act,

(a) specify the powers of the substitute decision maker and the duration of the appointment and impose such terms and conditions as the commissioner considers appropriate; and

(b) limit the powers conferred on the substitute decision maker to those required in view of the nature and urgency of the situation.

DIVISION 7

TERMINATION, REPLACEMENT AND VARIATION OF APPOINTMENT

APPLICATION AND PROCEDURE

Application for termination, replacement or variation

130(1)      Any person may apply in writing to the commissioner for one or more of the following:

(a) the termination of the appointment of a substitute decision maker for personal care or for property;

(b) the appointment of a person to replace a substitute decision maker for personal care or for property whose appointment has been terminated, or who has died;

(c) the variation of an appointment of a substitute decision maker for personal care or for property.

Form of application

130(2)      An application under subsection (1) shall be in a form approved by the commissioner.

Commissioner may initiate application

130(3)      In response to a complaint or on his own initiative, the commissioner may initiate an application under this section.

Refusal to consider frivolous application

131(1)      The commissioner may refuse to consider an application received under subsection 130(1) that he or she considers to be frivolous or vexatious.

Notice of decision to dismiss

131(2)      The commissioner shall give notice of a decision to refuse to consider an application to the applicant and the vulnerable person.

Notice of application

132         Except where the commissioner has refused to consider an application under section 131, he or she shall give notice of an application to

(a) the vulnerable person;

(b) any currently-appointed substitute decision maker for the vulnerable person;

(c) the proposed substitute decision maker, if any;

(d) the vulnerable person's committee, if any;

(e) the vulnerable person's nearest relative; and

(f) any other person, including a member of the vulnerable person's support network, the commissioner considers appropriate.

Decision to refer to hearing panel

133(1)      The commissioner may refer an application or part of an application to a hearing panel at any stage, in which case the hearing panel shall hold a hearing for the purpose of making recommendations to the commissioner.

Notice of referral to hearing panel

133(2)      The commissioner shall give notice of a referral to a hearing panel to the applicant and the persons given notice under section 132.

Division 2 applies

133(3)      Division 2 applies, with necessary modifications, if an application is referred to a hearing panel under this section.

No referral to hearing panel

134(1)      Alternatively, the commissioner may consider an application without referring it to a hearing panel and shall give notice of this procedure to the applicant and the persons given notice under section 132.

Opportunity to be heard

134(2)      If the commissioner considers an application without referring it to a hearing panel the commissioner shall give the applicant and the persons notified under section 132 an opportunity to present information and make representations respecting the application.

Notice of decision

135(1)      The commissioner shall give notice of a decision with respect to an application under section 130 to the applicant, to the persons given notice under section 132 and to a substitute decision maker who is appointed if he or she is not otherwise given notice under that section.

Reasons on request

135(2)      The commissioner shall provide written reasons for the decision when requested to do so by a person referred to in subsection (1).

TERMINATION

Decision to terminate

136         On application under clause 130(1)(a), the commissioner

(a) shall make a decision to terminate the appointment of the substitute decision maker if the commissioner determines that one or more of the criteria for the appointment of a substitute decision maker for personal care in subsection 53(1) or for property in subsection 88(1), as the case may be, are no longer met; and

(b) may make a decision to terminate the appointment of the substitute decision maker if the commissioner determines that the substitute decision maker

(i) is unable or is unwilling or refuses to act or to continue to act as substitute decision maker,

(ii) has failed to act in accordance with this Act or the terms and conditions of the appointment,

(iii) has acted in an improper manner or in a manner that has endangered or that may endanger the well-being or property of the vulnerable person, or

(iv) is no longer a suitable person to act as a substitute decision maker.

REPLACEMENT

Decision to appoint replacement substitute decision maker

137(1)      If, on application under clause 130(1)(b), the commissioner determines that the criteria for the appointment of a substitute decision maker for personal care in subsection 53(1) or for property in subsection 88(1), as the case may be, continue to be met, the commissioner may appoint a person to replace a substitute decision maker

(a) whose appointment has been terminated under clause 136(b); or

(b) who has died, where there is no surviving joint substitute decision maker or where no alternate substitute decision maker has been appointed.

Eligibility for appointment

137(2)      A person cannot be appointed as a substitute decision maker under this section unless he or she meets the eligibility criteria for a substitute decision maker set out in section 54 or section 89, as the case may be.

Powers of replacement substitute decision maker

138         A substitute decision maker appointed under section 137 has the same powers and duties as the substitute decision maker he or she replaces, and the appointment is subject to the same terms and conditions as the original appointment.

VARIATION

Decision to vary appointment

139(1)      On an application under clause 130(1)(c) to vary an appointment, the commissioner may, in accordance with this Act, make a decision to do one or more of the following:

(a) vary the powers conferred or the duties imposed on the substitute decision maker in the appointment;

(b) vary the terms and conditions of the appointment;

(c) vary the duration of the appointment but shall not extend it beyond five years from the effective date of the appointment being varied;

(d) appoint an additional or alternate substitute decision maker for personal care or for property, on such terms and conditions as the commissioner considers appropriate.

Limitation re personal care and property

139(2)      When making a decision to vary an appointment under this section, the commissioner shall not

(a) vary an appointment of a substitute decision maker for personal care to include powers respecting property; or

(b) vary an appointment of a substitute decision maker for property to include powers respecting personal care.

Eligibility for appointment

139(3)      A person cannot be appointed as a substitute decision maker under this section unless he or she meets the eligibility criteria for a substitute decision maker set out in section 54 or section 89, as the case may be.

DIVISION 8

REVIEW OF APPOINTMENT BEFORE RENEWAL

Appointment not renewed if no review

140(1)      An appointment of a substitute decision maker for a vulnerable person may not be renewed unless a review of it is undertaken in accordance with this Division.

More than one renewal of appointment

140(2)      An appointment may be renewed more than once if a review is undertaken in accordance with this Division before each renewal.

Purpose of review

140(3)      The purpose of a review is to determine whether the criteria for the appointment of a substitute decision maker, as set out in subsection 53(1) or 88(1), as the case may be, continue to be met and if so

(a) whether the appointment of the person named as the substitute decision maker should be renewed or whether another person should be appointed as the substitute decision maker;

(b) whether an additional or alternate substitute decision maker should be appointed; and

(c) whether the powers of the substitute decision maker or the terms or conditions of the appointment should be varied and, if so, in what respect.

Referral to hearing panel

141(1)      For the purpose of a review, the commissioner may establish a hearing panel under section 35 and refer one or more of the matters described in subsection 140(3) to the hearing panel for a hearing and recommendations.

Commissioner may review without referral

141(2)      Alternatively, the commissioner may conduct the review without referring the matters to a hearing panel.

Notice of review

141(3)      The commissioner shall give notice of the review and the procedure that has been chosen to

(a) the vulnerable person;

(b) any currently-appointed substitute decision maker for the vulnerable person;

(c) the vulnerable person's committee, if any;

(d) the vulnerable person's nearest relative; and

(e) any other person, including a member of the vulnerable person's support network, the commissioner considers appropriate.

Referral if objection

141(4)      Despite subsection (2), if the commissioner has chosen to conduct the review without a hearing panel but receives, within 14 days of the date of the notice, a written objection to that procedure from a person given notice under subsection (3), the commissioner shall refer the review to a hearing panel.

Hearing and recommendations

142(1)      When a review is referred to a hearing panel, the hearing panel shall hold a hearing for the purpose of making recommendations to the commissioner.

Division 2 applies

142(2)      Division 2 applies, with necessary modifications, if a review is referred to a hearing panel.

Opportunity to be heard

143         If the commissioner conducts a review without referring the matters to a hearing panel, the commissioner shall give the persons who are given notice under subsection 141(3) an opportunity to present information and make representations respecting the review.

DECISION ON A REVIEW

Decision to renew or vary appointment

144(1)      If the commissioner determines that the criteria for the appointment of a substitute decision maker set out in subsection 53(1) or 88(1), as the case may be, continue to be met, the commissioner may do one or more of the following:

(a) renew the appointment of the substitute decision maker;

(b) terminate the appointment of the substitute decision maker and appoint another person as a substitute decision maker;

(c) appoint an additional or an alternate substitute decision maker.

Powers may be continued on renewal

144(2)      When an appointment is renewed under clause (1)(a), the commissioner may continue the powers granted in the original appointment or may vary them.

Limitation re personal care and property

144(3)      When varying powers in an appointment under this section, the commissioner shall not

(a) vary an appointment of a substitute decision maker for personal care to include powers respecting property; or

(b) vary an appointment of a substitute decision maker for property to include powers respecting personal care.

Powers on appointment

144(4)      A substitute decision maker who is appointed under clause 1(b) or (c) may be granted the same powers and is subject to the same duties, terms and conditions as a substitute decision maker appointed under Division 3 or 4, as the case may be.

Terms and conditions

144(5)      The commissioner may impose any terms and conditions that he or she considers appropriate when renewing or making an appointment under this section.

Duration of appointment

144(6)      A renewal of an appointment under this section shall not be longer than five years from the date of the renewal.

Decision to terminate appointment

145         If the commissioner determines that one or more of the criteria for the appointment of a substitute decision maker set out in subsection 53(1) or 88(1), as the case may be, are no longer met, the commissioner shall terminate the appointment of the substitute decision maker.

Notice of decision

146(1)      The commissioner shall give notice of a decision under section 144 or 145 to the persons given notice under subsection 141(3) and to any substitute decision maker who is appointed if that person is not otherwise given notice under that subsection.

Reasons on request

146(2)      The commissioner shall provide written reasons for the decision when requested to do so by a person referred to in subsection (1).

DIVISION 9

APPEAL TO COURT OF QUEEN'S BENCH

Appeal from decision of commissioner

147(1)      An appeal to the court may be made by a person referred to in subsection (2) from a decision of the commissioner made under this Part, other than a decision

(a) under subsection 50(3) or 85(3) to refer an application to a hearing panel;

(b) under subsection 64(1) to approve the temporary placement of a vulnerable person in a developmental centre;

(c) under subsection 133(1), 134(1), 141(1) or 141(2) as to whether or not to refer a matter to a hearing panel.

Persons who may appeal

147(2)      The following persons may appeal a decision of the commissioner referred to in subsection (1):

(a) the person for whom the application was made, or for whom the review was undertaken, which gave rise to the decision;

(b) the applicant for an appointment or a decision of the comissioner;

(c) the person who was proposed in the application to be the substitute decision maker, if any;

(d) any currently-appointed substitute decision maker for the person referred to in clause (a);

(e) the committee for the person referred to in clause (a), if any;

(f) any other person who was given notice of the decision being appealed and made representations to a hearing panel or to the commissioner, as the case may be.

Appeal with leave of court

147(3)      In addition to those persons specified in subsection (2), any person with leave of the court may appeal a decision of the commissioner referred to in subsection (1) to the court.

METHOD OF APPEAL

Notice of application filed

148         An appeal under section 147 shall be commenced by filing a notice of application.

Time for filing and serving

149         A notice of application under section 148 shall be filed in the court and served on the persons referred to in section 150, within 30 days after the applicant receives a copy of the decision of the commissioner, or within such further time as the court permits.

Service of notice of application

150         The applicant shall serve the notice of application upon

(a) each person who was given notice of the decision being appealed; and

(b) the commissioner.

Commissioner files decision in court

151         Immediately upon receiving a copy of the notice of application, the commissioner shall deliver to the court copies of

(a) the application which gave rise to the decision being appealed;

(b) the recommendations of the hearing panel made with respect to the matter, if any;

(c) the decision in respect of which the appeal is made;

(d) the reasons for the decision, if any;

(e) the appointment; and

(f) any other documents the commissioner considers relevant to the appeal.

Service on Public Guardian and Trustee

152(1)      No appeal under section 147 shall be heard by the court unless the Public Guardian and Trustee is served with a copy of the notice of application at least 10 days prior to the date fixed for the hearing.

Public Guardian and Trustee right to be heard

152(2)      Upon being served, the Public Guardian and Trustee has a right to be heard with respect to the appeal.

S.M. 2013, c. 46, s. 46.

Stay of decision

153         The court may stay the decision being appealed on such terms as are considered just.

Not compellable witness

154         Neither the commissioner nor a member of a hearing panel shall be required to give evidence respecting information obtained in the performance of duties or the exercise of powers under this Act in an appeal.

Appeal as fresh matter

155         The hearing of the appeal shall be a fresh hearing and the court may consider the documents referred to in section 151, and any further material or evidence that it considers relevant to the appeal.

POWERS OF COURT

Powers of court on appeal

156(1)      Except for an appeal referred to in subsection (2), the court may

(a) set aside, vary or confirm the decision of the commissioner; or

(b) make any decision that in its opinion the commissioner could have made.

Powers of court re dismissal of application

156(2)      Where an appeal is from the commissioner's decision to dismiss an application for the appointment of a substitute decision maker, the court may

(a) confirm the decision of the commissioner to dismiss the application; or

(b) set aside the decision of the commissioner and make an order in accordance with subsections (3) and (4).

Court appoints substitute decision maker

156(3)      Where the court sets aside the decision of the commissioner under clause (2)(b), the court shall proceed to consider the application for the appointment of a substitute decision maker and may appoint a substitute decision maker who meets the eligibility criteria set out in Division 3 or 4, as the case may be.

Powers to be specified

156(4)      When a substitute decision maker is appointed under subsection (3), the court shall, in accordance with Division 3 or 4, as the case may be, specify the powers of the substitute decision maker, the duration of the appointment and impose such terms and conditions as the court considers appropriate.

Effect of court order

157         An order of the court made under section 156 is deemed to be a decision of the commissioner for the purposes of this Act and the commissioner shall carry out his or her duties and may exercise his or her powers under this Act as if the order made under section 156 were a decision made by the commissioner.

Copy of order to commissioner

158         The applicant shall provide the commissioner with a copy of any order made under this Division.

PART 5

NOTICE, CONFIDENTIALITY, IMMUNITY, REGULATIONS AND OFFENCES

NOTICE

Notice given by commissioner

159(1)      Where the commissioner is required to give any notice under this Act, the notice shall be in writing and given as set out in this section.

Notice given by ordinary mail

159(2)      Any notice given by the commissioner may be given by sending a copy of the notice by prepaid, first class mail to the last known address where the person resided or carried on business.

Notice to vulnerable person if hearing panel established

159(3)      Despite subsection (2), a notice given by the commissioner to a vulnerable person or a person for whom an application for the appointment of a substitute decision maker is made shall be given by

(a) leaving a copy of the notice with the person; or

(b) sending a copy of the notice, together with an acknowledgment of receipt card, by mail to the last known address where the person resided;

in the following circumstances:

(c) under subsection 42(3), (referral to hearing panel re appointment in other area);

(d) under subsection 51(3), (hearing by hearing panel re appointment of substitute decision maker for personal care);

(e) under subsection 86(3) (hearing by hearing panel re appointment of substitute decision maker for property);

(f) under subsection 133(2) or 134(1) (procedure chosen for application re termination, replacement or variation);

(g) under subsection 141(3) (review and procedure chosen).

Effective notice under clause (3)(b)

159(4)      Notice given by mail under clause (3)(b) is effective

(a) only if the acknowledgment of receipt card or a post office receipt, bearing a signature that purports to be the signature of the person to be given notice, is received by the commissioner; and

(b) on the date on which the commissioner receives either receipt signed as provided in clause (a).

When notice mailed

159(5)      A notice sent by ordinary mail under subsection (2) is deemed to be received on the fifth day after the day of mailing, unless the person to whom it is sent establishes that, acting in good faith, he or she did not receive the notice or did not receive it until a later date because of absence, accident, illness or other cause beyond that person's control.

Notice dispensed with

159(6)      Where the commissioner is unable, after making reasonable efforts, to ascertain the existence or address of a person who is to be given notice under this Act, other than a person referred to in subsection (3), the commissioner may dispense with giving notice to that person under this section.

Actual notice sufficient

159(7)      Despite the fact that notice is not given as set out in this section, it is sufficiently given if notice actually came to the attention of the person to whom it was intended to be given within the time for giving it under this Act.

CONFIDENTIALITY

Confidentiality re vulnerable person

160         The commissioner, an executive director, a member of a hearing panel and any person engaged in the administration of this Act shall maintain confidentiality with respect to all information about a vulnerable person which comes to his or her knowledge in the performance of duties or the exercise of powers under this Act, and shall not disclose such information except

(a) with the consent of the person to whom the information relates, or, if that person is incapable of providing consent, with the consent of a person authorized to consent on his or her behalf;

(b) in accordance with this Act;

(c) where disclosure is required by another Act;

(d) by order of a court;

(e) where disclosure is necessary to the performance of duties or exercise of powers under this Act; or

(f) where, in the opinion of the person requested to disclose information, disclosure is in the best interests of the vulnerable person.

S.M. 2011, c. 26, s. 47.

Confidentiality re person who reports abuse or neglect

160.1       An executive director and any person engaged in the administration of this Act shall not disclose any information that could reasonably be expected to reveal the identity of a person who makes a report of abuse or neglect under section 21, except

(a) with the consent of the person who makes a report of abuse or neglect;

(b) where disclosure is required by another Act;

(c) by order of a court;

(d) where disclosure is necessary to the performance of duties or exercise of powers under this Act; or

(e) where, in the opinion of the person who makes a report of abuse or neglect, disclosure is in the best interests of the vulnerable person.

S.M. 2011, c. 26, s. 47.

Information to be furnished

161(1)      Despite any restriction in legislation or elsewhere, respecting the disclosure of information, the commissioner or executive director may require any person who in the opinion of the commissioner or executive director is able to give any information respecting an application, investigation, or other matter under this Act

(a) to furnish the information to the commissioner or executive director, as the case may be; and

(b) to produce any record, document or thing which, in the opinion of the commissioner or the executive director, relates to the application, investigation, or other matter and which is in the possession or under the control of that person.

Solicitor-client privilege protected

161(2)      Nothing in subsection (1) abrogates a privilege that may exist between a solicitor and his or her client.

IMMUNITY

Immunity re furnishing information

162(1)      No action or other proceeding may be brought against a person

(a) [repealed] S.M. 2011, c. 26, s. 47;

(b) for complying with a requirement to furnish information or produce any record, document or thing.

Immunity re powers and duties

162(2)      No action or other proceeding may be brought against the commissioner, an executive director, a member of a hearing panel or an employee of the government

(a) for any act done in good faith, in the exercise or intended exercise of a power, or in the performance or intended performance of a duty under this Act; or

(b) for any neglect or default in good faith in the exercise of a power or the performance of a duty under this Act.

S.M. 2011, c. 26, s. 47.

REGULATIONS

Regulations

163         The Lieutenant Governor in Council may make regulations

(a) designating facilities as developmental centres for the purposes of this Act;

(b) respecting support services provided for vulnerable persons;

(c) establishing fees or a method of determining fees to be charged for services provided;

(c.1) for the purpose of section 25.3, setting out criteria and extenuating circumstances, and the information to be included in the report;

(d) respecting the powers of substitute decision makers and the terms and conditions of an appointment of a substitute decision maker;

(e) respecting the form, amount and terms and conditions of any bond or other security required to be provided by a substitute decision maker for property and the conditions upon which, and the manner in which, bonds or other security may be forfeited or realized upon;

(f) respecting expenditures made by a substitute decision maker for property from a vulnerable person's property;

(g) respecting inventories and accounts of a vulnerable person's property, including debts, liabilities, receipts and disbursements, to be filed with the commissioner by a substitute decision maker for property;

(h) designating jurisdictions outside Canada for the purposes of subsection 114(2);

(i) prescribing forms and providing for their use;

(j) respecting the cost of maintenance of, and charges to be paid by, or on behalf of any person residing in a developmental centre whose care is the responsibility of the government of Canada;

(k) establishing fees or a method of determining fees to be charged for residential care or placement services provided for vulnerable persons by developmental centres or by residential care facilities approved or licensed under The Social Services Administration Act;

(l) establishing advisory boards for government owned or controlled developmental centres;

(m) in addition to sections 165 to 169, establishing further transitional provisions for persons formerly subject to Part II of The Mental Health Act as it read immediately before the coming into force of this Act;

(n) defining words or phrases for which no definition is given in this Act;

(o) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this Act.

S.M. 2011, c. 26, s. 47.

OFFENCES

Offences

164(1)      A person is guilty of an offence under this Act who

(a) abuses or neglects a vulnerable person in contravention of section 20.1;

(a.1) fails to take all reasonable steps to protect a vulnerable person as required under section 20.2;

(a.2) fails, refuses or neglects to report that a vulnerable person is or is likely to be abused or neglected as required under section 21;

(b) interferes with any person who is attempting to report, reports or has reported that a vulnerable person is or is likely to be abused or neglected;

(b.1) discloses the identity of a person who makes a report of abuse or neglect, in contravention of section 160.1;

(b.2) dismisses, suspends, demotes, disciplines, harasses, interferes with or otherwise disadvantages a person who makes a report of abuse or neglect, in contravention of section 21.2;

(c) interferes with the commissioner, executive director or any person in the exercise of powers or the performance of duties under this Act;

(d) withholds, destroys, conceals or refuses to furnish any information, or produce any record, paper or thing required to be produced under this Act;

(e) publishes in a newspaper or other publication, or broadcasts on radio or television, the name or other identifying information of

(i) a vulnerable person, or

(ii) a person for whom an application for the appointment of a substitute decision maker is made,

who is the subject of a hearing before a hearing panel;

(f) falsely holds himself or herself out, or falsely represents himself or herself, as a substitute decision maker for a vulnerable person, or as a substitute decision maker having powers other than those powers granted by the commissioner; or

(g) in a statement made in any proceeding under this Act, asserts something that he or she knows to be untrue.

Onus

164(1.1)    In any proceedings for an offence under clause (1)(a.1), it shall be for the accused to prove on a balance of probabilities that he or she took all reasonable steps to protect a vulnerable person as required under section 20.2.

Penalties

164(2)      A person who is guilty of an offence under subsection (1) is liable on summary conviction to a fine of not more than $50,000 or imprisonment for a term of not more than 24 months, or both.

Prosecution within two years

164(3)      A prosecution under this Act may be commenced not later than two years after the alleged offence is committed.

S.M. 2011, c. 26, s. 47.

PART 6

TRANSITIONAL, CONSEQUENTIAL, C.C.S.M. REFERENCE AND COMING INTO FORCE

Transitional: definitions

165(1)      In this section,

"former Act" means Part II of The Mental Health Act as it read immediately before the coming into force of this Act; (« ancienne loi »)

"order" means an order under the former Act

(a) made by the Director of Psychiatric Services placing a person in an institution or under supervision, or

(b) made by a provincial judge ordering a person to be sent to an institution or appointing a custodian for a person. (« ordonnance »)

Orders preserved for three years

165(2)      Despite the repeal of the former Act, an order that is in effect when this Act comes into force continues in effect until

(a) an application is dismissed under subsection 50(1), 50(2), 85(1) or 85(2);

(b) an application for the appointment of a substitute decision maker for the person in respect of whom the order is made, is finally disposed of under this Act; or

(c) three years after this Act comes into force;

whichever comes first.

Rescission of orders

165(3)      During the period that it continues in effect under subsection (2), an order may be rescinded by the commissioner, and for that purpose the commissioner has the same powers respecting orders under the former Act as did the Director of Psychiatric Services or a provincial judge.

Commissioner's approval of continuation of placement

166(1)      Despite anything in this Act, on application by a substitute decision maker for personal care who has been granted power under clause 57(2)(a) to decide where a vulnerable person is to live, the commissioner may approve the continuation of the placement of a vulnerable person in a developmental centre if the commissioner is satisfied that

(a) the vulnerable person, as an adult or as a child, resided in a developmental centre immediately prior to the coming into force of this Act; and

(b) the conditions set out in subsection 63(6) are met.

Time for bringing application

166(2)      An application under subsection (1) shall be made as soon as reasonably possible, but in any event not later than 60 days from the date on which the substitute decision maker for personal care receives notice of his or her appointment.

Notice of decision

166(3)      The commissioner shall give notice of a decision under subsection (1) to

(a) the vulnerable person;

(b) the applicant;

(c) any currently-appointed substitute decision maker for the vulnerable person;

(d) the vulnerable person's committee, if any;

(e) the vulnerable person's nearest relative; and

(f) any other person, including a member of the vulnerable person's support network, the commissioner considers appropriate.

Placement in developmental centre continued

167         A substitute decision maker for personal care who has been granted power under clause 57(2)(a) to decide where a vulnerable person is to live

(a) may continue the placement of the vulnerable person in a developmental centre for 60 days from the date on which the substitute decision maker receives notice of his or her appointment; and

(b) where an application is made under subsection 166(1), the substitute decision maker may continue the placement of a vulnerable person in a developmental centre until the application is finally disposed of under this Act.

Right to leave developmental centre

168         If a substitute decision maker's application is not approved under subsection 166(1), the vulnerable person has the right to leave the developmental centre.

Appeal

169(1)      Any person who is entitled under subsection 166(3) to be given notice of the commissioner's decision may appeal that decision to the court.

Division 9 of Part 4 applies

169(2)      Division 9 of Part 4 applies with necessary modifications to the appeal.

170-209

NOTE: These sections contained amendments to The Mental Health Act and consequential amendments to other Acts, which amendments are now included in those Acts.

C.C.S.M. REFERENCE AND COMING INTO FORCE

C.C.S.M. reference

210         This Act may be cited as The Vulnerable Persons Living with a Mental Disability Act and referred to as chapter V90 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

211         This Act comes into force on a day fixed by proclamation.

NOTE:  S.M. 1993, c. 29  was proclaimed in force October 4, 1996.

 

 


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