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THE VULNERABLE PERSONS THE VULNERABLE PERSONS LIVING WITH A LIVING WITH A

MENTAL DISABILITY ACTMENTAL DISABILITY ACTSubstitute Decision-Making ProvisionsSubstitute Decision-Making Provisions

General VPA Overview and SDM ProvisionsGeneral VPA Overview and SDM Provisions

JoAnne Reinsch, Vulnerable Persons’ CommissionerJoAnne Reinsch, Vulnerable Persons’ Commissioner

Larisa Wydra, Program SpecialistLarisa Wydra, Program Specialist

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Vulnerable Persons Act (VPA) Overview Key Definitions Guiding Principles Role of the VPCO Substitute Decision Maker (SDM) - When can I

apply? Applying for a SDM Duties & Responsibilities of the SDM Other Provisions of the VPA

Key Messages

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THE VULNERABLE PERSONS LIVING WITH A MENTAL DISABILITY ACT

Underlying assumption that individuals living

with a mental disability should have the

opportunity to make their own decisions and

direct their own lives with support if

necessary

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Proclaimed in 1996

Act or law that sets out, protects and ensures the rights of vulnerable persons in Manitoba are respected

Key Provisions: - Guiding Principles- Support Services- Protection & Emergency Intervention- Substitute Decision Making (SDM)

THE VULNERABLE PERSONS LIVING WITH A MENTAL DISABILITY ACT (VPA) - Overview

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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.

Mental Disability means significantly impaired intellectual functioning existing concurrently with impaired adaptive behaviour and manifested prior to the age of 18 years (excludes a mental or psychiatric disorder as defined under The Mental Health Act.)

Key Definitions/Terms:

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Incapacity/Unable to make a decision

When she or he is not able to understand

information that is relevant to making a

decision about personal care or the

management of property, or is not able to

appreciate the reasonably foreseeable

consequences of a decision, or lack of one.

Key Definitions/Terms: (contd)

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Support NetworkOne or more persons who provide advice, support, or

assistance to a vulnerable person, and may include:

Vulnerable Person’s Spouse Family Members, and Others Chosen by the Vulnerable Person (can

include paid service/care providers)

Key Definitions/Terms: (contd)

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Supported Decision Making: Vulnerable person enabled to make and

communicate decisions with advice/assistance from a support network.

Substitute Decision Making: Substitute Decision Maker (SDM) makes decision in

the place of vulnerable person.

Key Definitions/Terms: (contd)

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The Five Guiding Principles

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1. Vulnerable persons are presumed to be competent to make their own decisions, unless demonstrated otherwise;

Five Guiding Principles

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2. Vulnerable persons should be encouraged to make their own decisions;

3. 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;

4. 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;

Five Guiding Principles (cont’d)

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Five Guiding Principles (cont’d)

5. 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.

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Commissioner adjudicates requests for substitute decision makers

Warranted? – a vp, incapable even with asst, decisions to be made, SDM reasonable in circumstances

If so, parameters of the SDM appointment (whom, powers, length, etc.)

Ensure natural justice and procedural fairness occur

**Taking away fundamental right to make decisions/to self-determination**

Role of the Vulnerable Persons Commissioner’s Office

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“When can I apply for a SDM?”

VPA provisions:1. Criteria:

A vulnerable personAn involved support networkIndividual incapable of personal care/managing

property on own or with the involvement of the support network

Decisions to be made

2. Any person may apply….(who) believes there is a need for a SDM

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“Why do I believe the individual needs a SDM?”Some questions to ask oneself:

1. Based on current circumstances, what is the specific reason why I believe the Individual needs a SDM?

2. Have we reached the “only as a last resort” threshold of Principle 5?

3. Through the involvement of family, friends, service providers, are the Individual’s needs and best interests being met?

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SDM Application Process

Step 1 – The Application

Someone believes an adult living with a mental disability needs a substitute decision maker

They send an application to the Office of the

Vulnerable Persons’ Commissioner

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SDM Application Process

Step 2 – Preliminary Investigation

Commissioner’s Office looks at the situation to see whether a substitute decision maker “appears” to be needed

Do a preliminary investigation

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SDM Application ProcessStep 2 – Preliminary Investigation

Looking for: Definition of vulnerable person is met An involved support network Decisions to be made Not able to make decisions even with assistance of

support network If all appear to be true, Commissioner asks a Hearing

Panel to review situation and make a recommendation

Notice is given to all parties involved

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SDM Application Process

Step 3 – Hearing Panel Hearing Panel meets with vulnerable person,

family, and others in support network Ask questions about:

The vulnerable person The help the vulnerable person needs The decisions that need to be made and that the

vulnerable person is not able to make Who the substitute decision maker should be How long

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SDM Application Process

Step 3 – Hearing Panel

Hearing Panel tells Commissioner what they heard and whether they think the vulnerable person needs a substitute decision maker (via written recommendations)

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SDM Application Process

Step 4 – Commissioner’s DecisionCommissioner decides: does the vulnerable person need a substitute

decision maker or not?

Is the individual a vulnerable person?

Incapable of personal care/managing property even with assistance of support network?

Are there decisions to be made?

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SDM Application Process

Step 4 – Commissioner’s DecisionSDM Appointment: Who the substitute decision maker will be For what area – personal care and/or property For what type of decisions For how long the substitute decision maker (only as

long as necessary but not more than 5 years) Terms and conditions (if applicable)

Public Trustee appointed if no one available

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Step 4 – Commissioner’s Decision

All parties who received notice of the application receive notice of the Commissioner’s decision

SDM and vulnerable person receives legal Appointment Document outlining authority

Decision can be appealed to Court of Queen’s Bench – within 30 days

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To perform duties diligently, with honesty and integrity and in good faith To assist a vulnerable person in making decisions To foster independence To encourage participation in decision making Choose the least restrictive and least intrusive course of action Should only take control and make the decision when the vulnerable person is not able to (not able to understand info and appreciate consequences) When making decisions, think about the vulnerable person’s

wishes, values, beliefs Make decisions in the best interest of vulnerable person

SDM Duties:

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Best interest considerations...

Whether vulnerable persons’: Condition/well-being likely to be improved by proposed

health care Condition/well-being likely to be improved without

proposed health care

Whether the benefit outweighs the risk of harm Is less restrictive or less intrusive health care and

reasonable alternative Right to health care information (over-rides other legislation

restricting access)

SDM - Health Care Specific Duties and Issues (where appointed)

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Best Interests

BALANCE

PROTECTION

VS.

LEARNING EXPERIENCE

LEAST RESTRICTIVE

&

LEAST INTRUSIVE

WELL

INFORMED

COMMONSENSE

BENEFITS

VS.

RISKS

SELF-AWARE

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SDM Accounting Duties and Responsibilities

Where appointed with property powers:

File an opening inventory within 6 months Report on true inventory of individual’s property,

debts and liabilities

File annual accounting reports thereafter Report on property, debts, liabilities, receipts and

disbursements

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Medical treatment for primary purpose of research;

Sterilization that is not medically necessary,

Removal of tissue for transplant,

Voluntary admission to a psychiatric facility,

Adoption or guardianship of a child,

Participation in any activity or project whose primary purpose is research

Need court approval to place vulnerable person in developmental centre (excludes respite)

Absolute Exclusions

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Review of Appointment

Towards the end of appointment, a review is undertaken to decide whether a substitute decision maker is still needed;

If so, are the parameters of the appointment still appropriate

Renewed based on current circumstances

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Variation, Termination & Replacement to Substitute Decision Maker Appointment

During the term, if changes are needed, requests can be made to the Commissioner’s Office

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Provisions to make an emergency appointment of a substitute decision maker

30 day appointment

Emergency Substitute Decision Maker

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Other VPA Provisions

Support Services Support Services may be provided (ex.

residential services, counselling, vocational rehabilitation, life skills programs, etc.).

Sets out provisions for an Individual Plan for every vulnerable person receiving support services – a participative approach.

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Protection and Emergency Intervention Duty to Report Abuse and Neglect - mandatory

reporting by service providers, SDM, Committees where one “believes on reasonable grounds… is or likely to be abused or neglected”

Authority to Investigate

Authority for Protective Action

Emergency Intervention

Other VPA Provisions

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Wrap-Up:

Guiding principles

The importance of the support network

Some considerations when thinking about applying for a SDM

Steps of the application and hearing process

The role and duties of the SDM

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For more information on the substitute decision maker

provisionsContact:

Office of the Vulnerable Persons’ Commissioner

305-114 Garry Street

Winnipeg MB R3C 4V7

Telephone: (204)945-5039

Toll Free: 1-800-757-9857