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General VPA Overview and SDM Provisions

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General VPA Overview and SDM Provisions JoAnne Reinsch, Vulnerable Persons’ Commissioner Larisa Wydra, Program Specialist

2 Key Messages 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 The act or law that vulnerable persons can claim as their own.

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 You will see when we talk about the Guiding Principles and the other provisions of the Act that it has been developed based on the 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.

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)

5 Key Definitions/Terms:
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.) Before we start talking about the Act, it is important for those that may not be familiar with it, to understand some of the terms or concepts that are referenced in the Act. Vulnerable person is a term that we will be using throughout this presentation and…. To meet the definition of a vulnerable person, one: Must be adult Be living with a mental disability Must need assistance with basic needs – personal care and/or property So what does mental disability mean - 3 key areas and all 3 must be met: 1. Significant impaired intellectual functioning – meaning well below average intelligence and we would be looking for a report of a clinical conclusion of significantly impaired intellectual functioning, made by a qualified professional 2. Impaired adaptive behaviour meaning significantly limited in their ability to independently carry out activities of daily living such as personal hygiene, domestic tasks, money management, etc 3. Been present prior to the age of 18 – the impairments must have been present prior to the age of 18

6 Key Definitions/Terms: (contd)
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. Need to keep in mind the importance of the support network that assists the Individual – often with that assistance the individual is able to make decisions Also important to keep in mind the decision at hand – capacity in relation to the complexity of the decision to be made – for example capable of making a decision regarding a flu shot but not able to understand the complexities of a cancer treatment plan

7 Key Definitions/Terms: (contd)
Support Network One 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) the support network is a very important concept in the Act – in many situations the support network enables a person to live independently. You will see as we go through the Guiding Principles, the support network is recognized, respected and encouraged – again that there is an underlying assumption that with support and assistance, many individuals are able to remain independent

8 Key Definitions/Terms: (contd)
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. Supported decision making – whereby a vulnerable person is enabled to make decisions with support SDM – steps in to make decisions because the vp is not able to understand the information and appreciate the consequences of such a decision even with the assistance of the support network……. BUT – only where supported decision-making is not working, SO – just because a SDM is appointed to make decisions in a certain area does not mean that supported decision-making stops – it should continue to the extent possible.

9 The Five Guiding Principles
There are 5 guiding principles that preface the Act and these principles are imbedded throughout the Act. These principles highlight for all Manitobans (everyone in this room) the underlying assumptions that we all need to be aware of and that also serve as a guide in how we conduct ourselves when interacting or working with vulnerable persons, either directly or indirectly.

10 Five Guiding Principles
Vulnerable persons are presumed to be competent to make their own decisions, unless demonstrated otherwise; Common law presumes that you and I and everyone else including vulnerable persons to be competent to make decisions about their lives…….unless something tells us otherwise – talk about that shortly.

11 Five Guiding Principles (cont’d)
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; Next 3 principles are enabling principles With this type of encouragement and support, many individuals who would fall within the definition of a vulnerable person are able to function quite well and live independently for their entire lives

12 Five Guiding Principles (cont’d)
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. However, even with this assistance from a support network, situations may arise that triggers or sends up a red flag or there is a challenge by someone which begins to bring into question the individual’s presumed competence that is referenced in #1 and that’s where the “unless demonstrated otherwise” and principle #5 comes into play.

13 Role of the Vulnerable Persons Commissioner’s Office
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** And when a situation arises where a SDM is thought to be needed, that is when the VPCO becomes involved. Briefly, the role is………….. Natural Justice - All parties have the right to know and understand what is being requested and why and be given an opportunity to respond and be heard – in particular the vulnerable person themselves.

14 “When can I apply for a SDM?”
VPA provisions: Criteria: A vulnerable person An involved support network Individual incapable of personal care/managing property on own or with the involvement of the support network Decisions to be made Any person may apply….(who) believes there is a need for a SDM We have many people asking us when should I apply for a SDM? And there is no black and white answer to that question – it is a very individual decision based on a specific set of circumstances Can be more helpful in answering the question “when can I apply for a SDM?” VPA provisions are……….. Specific criteria must be met - If you are applying for a SDM, you will need to answer questions in the application regarding the criteria provided in the Act – these are the criteria our Office initially reviews to decide whether to accept an application or dismiss it But it is important to know that even if these criteria are met, the the Act does not say that the individual must have a SDM…… Rather the Act is reactive in that it says that any person can apply who believes a vulnerable person is in need of a SDM – so the SDM provisions do not kick-in until someone tells us that they believe an individual needs a SDM……… So…..because it is that belief of someone that kick-starts these provisions in the Act, it is very important for families or whomever the applicant may be, to explore further why they believe the individual is in need of a SDM at this point in his or her life (and this will then tell you when you should apply)

15 “Why do I believe the individual needs a SDM?”
Some questions to ask oneself: Based on current circumstances, what is the specific reason why I believe the Individual needs a SDM? Have we reached the “only as a last resort” threshold of Principle 5? Through the involvement of family, friends, service providers, are the Individual’s needs and best interests being met? What has happened that makes you believe a SDM is now needed? – What we often hear in answer to this question from the applicant is that there are: Challenges by legal, financial and medical professionals not accepting the individuals signature or consent as they believe s/he is not capable of understanding and appreciating the decision before them – so generally high-risk decisions that need to be made Red flag – believe an individual is being taken advantage of financially Red flag - The Individual is living in very poor living conditions, possibly the parents have recently passed away (legitimate reasons – red flags/challenges) as an example, efforts to assist an individual with his money management has been unsuccessful - he continues to give the money needed for his basic living expenses away to his acquaintances – so efforts have been made to assist the individual to be independent but have not succeeded. (legitimate reason – last resort) Often there is no reason that comes out of #1 & 2 questions, but what we hear from the parent is that someone has told them they need to have this legal authority because their son or daughter is not able to made decisions even with assistance. Although it meets the criteria we spoke of in the previous slide and thus one could apply if they wish…… We strongly urge families to ask themselves this 3rd question before they consider applying for a SDM………… The support network does not need legal sanction to assist an individual with decision making. If your current situation is working – if there are no challenges or red flags going up, carry on. You are not doing anything unlawful. Want to be very clear though that in the end, it comes down to individual circumstances and that any person can apply who believes an individual is in need of a SDM and the VPCO will apply the criteria and the process to any application that they receive.

16 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 Although the VPA is not definitive as to when one should apply for a SDM, it is very explicit as to the process, steps and the criteria that the VPCO must follow and consider when a request is made to us for a SDM. The next few slides will take you through what actually happens when you submit an application for a SDM. When someone believes a person needs a substitute decision maker, they will file an application with the Office of the Vulnerable Persons’ Commissioner. Applications are available at the Regional FSH Offices, or by calling our office. We hope to have them available on-line later this year.

17 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 When an application is received at the office, we will conduct what is called a preliminary investigation. This is a process of gathering information regarding the person and his or her situation to see whether it appears that a substitute decision maker is needed.

18 SDM Application Process Step 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 In the information gathered we are looking for evidence that the person is a vulnerable person by definition in the law. The question is whether the person is an adult over 18 years of age who has a mental disability and needs help with personal care or management of his or her property/money. We look to see if the person has a support network that is involved with helping that person. We also look for whether there are decisions that need to be made that the person is not able to make - meaning the person is unable to understand information and appreciate consequences, even with the assistance of a support network. If the answer to these questions appear to be yes, the Commissioner will refer the application to a hearing panel for their review and recommendation. Notice is given to all parties (V/p, applicant, support network, CSW, s/p, etc.) If any are no, then we would dismiss the application – there is not justification for taking this individual’s decision-making rights away from them.

19 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 The VPCO has a hearing panel roster made up of a minimum of 20 persons and these individuals are either lawyers, family members who have v/ps in their lives, or community members who generally have some involvement or association with this area. When the Commissioner refers an application to a hearing panel, 3 members from the roster meet with the person, his or her family and support network- which may include service providers, and social workers. The hearing is presided over by one member of the panel and is conducted on an informal but orderly manner. The panel is not bound by the formal rules of evidence; however, they are obliged to base their findings and recommendations on credible evidence and information. At the hearing the panel members will ask questions of the Individual and the people who attend - about the Individual, what help he or she needs, what decisions the person requires that he or she is unable to make, who should be the substitute decision maker and for how long.

20 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) After the hearing is over, the panel members will provide their advice in the form of written recommendations to the Commissioner. In their recommendations the panel members will advise the Commissioner whether the person appears to be a vulnerable person by definition in the law and whether he or she appears to need a substitute decision maker. They will provide their advice of who the substitute decision maker should be, what decisions need to be made and for how long a substitute decision maker should be appointed.

21 SDM Application Process
Step 4 – Commissioner’s Decision Commissioner 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? After the Commissioner receives these recommendations, she will decide whether the person does require a substitute decision maker. She makes a decision on each of these criteria and if all are yes, then makes a SDM appointment. If any are “no”, the application is dismissed as there is no justification for taking away that individual’s decision-making rights.

22 SDM Application Process
Step 4 – Commissioner’s Decision SDM 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 Where a SDM is warranted, she then decides: Who is the appointed SDM – preference to a family member or friend who consents and is able, capable, suitable and willing - if no one available - PT Appointment indicates what authority or what types of decisions the SDM will be able to make - there are a total of 26 different categories related to either personal care or property matters – for example the authority to give, refuse or withdraw consent to make health care decisions or to receive, deposit and invest money the decision as to which of the 26 authority or powers to be granted to the SDM is based on the decisions that are before the individual now or in the foreseeable future that need to be made, and which he or she is not able to make even with the assistance of the support network ––example - decisions regarding an individual’s capability to make decisions regarding a flu shot vs cancer treatment - if the only decision before the individual is a flu shot (and is capable of making the decision on own or with support), would not then give the authority to make health care decisions to the SDM – the vulnerable person maintains that right – but if the decisions currently and in the next while are related to cancer treatment (and is not capable of d/m even with support), then would grant the authority - do not grant authority “just in case” – so would not grant the power just in case the individual has more serious health issues in the future – if so, there are provisions to apply for a variation to the appointment For how long – dictated by the decisions that need to be made but not longer than 5 years. Terms and Conditions: also have the ability to set out terms and conditions – for example we set out the accounting requirement of filing a financial report on an annual basis Also an appointment may be conditional upon receipt of a personal or commercial bond ($ personal bond; $ commercial bond)

23 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 When the SDM receives their Appointment Document – this is the legal document that they use and can share with for example the bank or doctor or whomever, when requested and provides them with the legal authority to “stand in the shoes” of the vulnerable person. Any person given notice can appeal the Commissioner’s decision to the Court of Queen’s Bench. It must be filed and served within 30 days after receiving commissioner’s letter.

24 SDM Duties: 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 – It is important for SDMs to understand what their role is – likewise it is important for service providers to understand the role of the SDM This slide summarizes the general duties and responsibilities that apply to all SDM’s and as outlined in the VPA As you can see, the SDM has the ongoing responsibility to assist, foster independence encourage participation of the vulnerable in decision-making. As mentioned earlier, just because a SDM has been appointed to make decisions in certain areas does not mean that supported decision making stops Again our earlier example, a SDM may have the authority to make health care decisions because of the complexities of cancer treatment and the individual’s inability to make such decisions, but the SDM should continue to allow the v/p to make decisions for instance about flu shots or other such decisions that she/he may be capable of making “Wishes, Values and beliefs”– either expressed or if non-verbal, possibly through their behavior or as interpreted or known by someone close to the individual (Values are deeply held beliefs about what is good, right and appropriate – deep-seated and remain constant over time – based on teachings/observations of parents, teachers, religious leaders and other influential period in our lives - relay Robin’s example when at PTO if needed) “Best Interest” – next slide gives us some insight into what is meant by best interests

25 SDM - Health Care Specific Duties and Issues (where appointed)
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) Health Care Specific Duties and Issues (where appointed) and also give us some insight into what “best interest” means Right to health information – where v/p not able to make health care decision(s), SDM has right to the information necessary to make the decision (not restricted by privacy-related legislation) Act also provides guidance regarding best interest considerations

Best Interests BALANCE PROTECTION VS. LEARNING EXPERIENCE BENEFITS VS. RISKS SELF-AWARE What are some other general or common considerations around best interests As stated in the health care considerations, confirms that one needs to consider the benefits vs. the risk of harm And in considering the benefits and risks, it becomes a bit of a balancing act – in that one needs to find a balance between protecting the individual from harm vs. the benefit of learning from the experience – this balancing-act is not an easy thing to do but it’s a very important consideration – in our own lives, we all choose the risks we will and will not take and we often learn very good lessons from those risks – so how can we allow this same opportunity to the individual we are assisting and supporting in considering best interests, its also very important to be well informed, to have all the relevant facts – to talk and actively listen to everyone involved and hear what is being said (even the stuff we may not want to hear) also as referenced in the health care considerations what is the least restrictive and least intrusive course of action and is it reasonable in these circumstances Also a key consideration - the need to be self-aware of our own values and beliefs, possibly our own self-interests and how they might influence our decision-making Above all, don’t lose sight of applying common sense to the situation. (can’t give an answer to specific situation because if I was charged with making such a decision, I would need to take into consideration all of these points – all I can do is provide you with these considerations and I hope they help you to arrive at a decision) COMMON SENSE WELL INFORMED LEAST RESTRICTIVE & LEAST INTRUSIVE

27 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 What’s involved: SDM needs to have a certain level of bookkeeping/accounting capabilities depending on the value and complexities of the assets and must be committed to taking on these tasks. 1. SDM will file with the Commissioner, by (date six months hence) a true inventory and account of the vulnerable person’s property, debts and liabilities which are under your power. 2. SDM will file with the Commissioner an annual accounting of the property, debts, liabilities, receipts and disbursements of the vulnerable person. The first annual accounting report will be for the one year period following the Commissioner’s approval of the inventory as submitted in #1 above, and will be submitted no later than two months following the end of the reporting period. Subsequent reports will be submitted on a yearly basis thereafter.)

28 Absolute Exclusions 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 A SDM cannot consent to………. NOTE: The following can be used if there are questions on the research exclusion. Research – This provision prohibit the SDM from consenting to matters where the health and welfare of the v/p takes a “back seat” to the research. Key is to determine who is benefitting if the v/p participates – if the individual v/p will benefit and it is natural to expect that vulnerable persons generally may also benefit, then this would not fall within the exclusion - However if the opposite is true (the vulnerable persons in general will benefit the individual v/p may benefit), then the research would fall within this exclusion

29 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 Before a substitute decision maker’s appointment can be renewed, it must be reviewed – ask all parties to consider whether or not a SDM is warranted and if so, what is the appropriate appointment based on the individual’s circumstances today and in the reasonably foreseeable future Information is collected from the people involved – the SDM, the Community Service Worker, the service providers. If there are still decisions required, that the person is not able to make, even with the involvement of his or her support network, the Commissioner can renew the appointment making changes to the parameters of the appointment as deemed necessary.

30 Variation, Termination & Replacement to Substitute Decision Maker Appointment
During the term, if changes are needed, requests can be made to the Commissioner’s Office The law also provides for making changes to substitute decision making appointments during the term of the appointment. If necessary, the appointment can be terminated, replaced with another person, or varied to allow the substitute decision maker to make other decisions. Requests for these changes would be made to the Commissioner using the appropriate application form provided by our office. The person, his or her nearest relative and other members of the support network – as decided by the Commissioner – are notified of all applications being considered by the Commissioner and are given an opportunity to provide information for the Commissioner to consider. (natural justice)

31 Emergency Substitute Decision Maker
Provisions to make an emergency appointment of a substitute decision maker 30 day appointment ESDM – provision to make an emergency appointment – majority of these are urgent surgery or health care related - my Office will generally deal with these in hours

32 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. Funded and administered by the Supported Living Program of FSH.

33 Other VPA Provisions 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 Again Supported Living Program of FSH oversees these provisions. Key – duty to report where one believes on reasonable grounds that the v/p is or is likely to be abused or neglected.

34 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 From the short time we have spent with you, I hope you are able to take away some food for thought and some useful information regarding…

35 Office of the Vulnerable Persons’ Commissioner
For more information on the substitute decision maker provisions Contact: Office of the Vulnerable Persons’ Commissioner Garry Street Winnipeg MB R3C 4V7 Telephone: (204) Toll Free:

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