Guess Who’s Coming to Visit:When a POA Tries to Restrict Visits with Residents in Long-Term Care Homes

The situation is a common one. A resident is recently admitted into a long-term care home. Shortly thereafter, the resident’s attorney for personal care (“POA”) directs staff not to allow certain family members or friends to visit with the resident. Does a POA have the authority to restrict visits with a resident in a long-term care home?

It depends. 

When a resident is cognitively intact and able to express their wishes to see family members and others, the situation is generally straightforward. This is because pursuant to the Residents’ Bill of Rights under the Fixing Long Term Care Act, 2021, a licensee of a long-term care home must fully respect and promote the right of a resident to receive visitors of their choice. Therefore, if the resident communicates their wish to receive a visitor, that wish must be respected by the home. Further, a Power of Attorney for Personal Care document does not take effect as long as the resident is mentally capable of making their own health and personal care decisions.

Matters become complicated when a resident is cognitively impaired and no longer mentally capable to make their own health and personal care decisions, and perhaps, no longer able to verbalize their wishes about visitors. Recently, in its decision in Orr v. Orr[1], the Ontario Superior Court of Justice provided guidance on the issue of a POA’s authority to restrict visitors from seeing an incapacitated resident living in a long-term care home. 

Bill Orr was an 82-year-old man living with advanced Alzheimer’s Disease in a long-term care home in Ontario ( “Home”). He was incapable of following verbal instructions or responding appropriately to any questions put to him. Bill’s wife, Gwen, acted as his attorney for property and personal care. Bill and Gwen had two children, a son (Nathan) and daughter (Alison), both of whom had been estranged from their parents for several years and excluded from Bill’s Will. Shortly after Bill’s admission into the Home, Gwen sought to deny Alison and Nathan access to visit Bill. The Home refused Gwen’s request and allowed Bill to receive visits from his children. As a result, Gwen commenced a court application seeking, amongst other things, an order that she be entitled to grant or deny visits by her children with Bill while he resided in the Home and an order directing the Home to enforce whatever restrictions she placed upon visits with Bill.  Nathan did not respond to the application.  Alison’s position was that although her mother was Bill’s POA, she should not be empowered to restrict her ability to visit with Bill, including privately.

The Court received evidence from Gwen, Alison, Bill’s treating geriatrician, friends, family and the Home’s administrator. Ultimately, the Court found that as a resident of a long-term care home, Bill had the statutory right to receive visitors of his choice without interference. According to the Court, there was no evidence that Bill had suffered any harm as a result of his visits with his children, and a risk that harm may occur to Bill in the future did not warrant restricting access by family on a precautionary basis. Given the animosity between Gwen and her children, the Court decided to provide directions regarding visitation, specifically allowing Alison (either alone or together with family and friends) to visit Bill without interference once every Wednesday and every other Saturday. The Court also ordered that Gwen, Alison and/or the Home were at liberty to seek further directions from it on the issue of access and visitation, if necessary.

In reaching its decision, the Court relied on the following important findings:

• A mere diagnosis of dementia, without more, does not determine the question of capacity. However, there were reasonable grounds in this case to believe that Bill was incapable of personal care.
• Bill was no longer able to effectively communicate verbally. However, there was evidence in Bill’s resident chart that he communicated non-verbally through behaviours.
• Bill’s wishes regarding visits with his children could no longer be ascertained.
• The Substitute Decisions Act, 1992[2] imposes on every attorney important duties aimed at fostering an incapacitated person’s independence and autonomy while protecting their best interests, including, without limitation:
  • to act diligently and in good faith;
  • to foster regular personal contact between the incapacitated person and supportive family members and friends;
  • to consult from time to time with supportive family and friends and those who provide personal care to the incapacitated person; and
  • to make decisions in accordance with wishes or instructions of the incapable person, as expressed while the person was still capable.
• Bill’s power of attorney document contained no written direction or instruction that Gwen must restrict or prevent Nathan and Alison from having contact with him.
• Prior to the onset of his dementia, and despite a period of estrangement, Bill had a close and loving relationship with his children and never expressed a desire to cut off contact with either of them.
• After his admission into the Home, Bill had a visit with Nathan and Alison and did express a wish to visit them on that occasion. There is a statutory presumption of capacity and Bill was presumed to have had capacity to give or refuse consent to Nathan and Alison visiting him on that date.
• When Alison and Nathan visited Bill, the Home’s nursing staff noted that Bill recognized his children immediately, was engaged and talkative and smiling throughout the visit.
• Every visit to Bill was made in the context of Bill living in a long-term care home that owed him the duty to ensure his mental, social and emotional well-being. The risk of harm of the visits must be considered in context.
• There was no evidence that visits from Nathan and Alison were contrary to Bill’s best interests, including safety. The Home took steps to monitor the visits and ensure they were consistent with Bill’s wishes and his rights as a resident. No staff identified any distress or harm to Bill occasioned by visits from Alison or Nathan.
  
• In the absence of any evidence of harm or distress, Bill’s presumptive right to receive visits from his children should continue.

The Court’s decision in Orr v. Orr reinforces that a direction given by a POA to restrict a resident’s visitors must be considered in the context of the resident living in a long-term care home, where resident well-being must be protected alongside their right to receive visitors of their choice. Therefore, a long-term care home (or other residential care setting) that receives a direction from a POA (or other substitute decision-maker) to restrict a resident’s visitors should consider the following questions in determining the appropriate response:

• Are there reasonable grounds to believe that the resident is incapable of making decisions regarding their own personal care? Has the resident’s capacity been assessed or can the home rely on a presumption of capacity?
• Can the resident communicate verbally or non-verbally through behaviours their wishes with respect to visitors?
• Does the power of attorney document contain any written direction or instruction with respect to no contact with certain persons?
• What is the nature of the relationship between the visitor and the resident? Are they family members or friends? Were they close or estranged? Is there any reasonable basis to believe that the visitor poses a risk of harm to the resident (e.g., prior criminal issues, a restraining order)?
• Based on observations made by staff, what is the resident’s reaction to seeing the visitor? Does the resident recognize the visitor? Are they showing signs of happiness or distress?
• Is the POA’s direction tainted by their own experience and strained relationship with the visitor?
• What is in the best interests of the resident?

Both a long-term care home and a resident’s POA have a significant role in ensuring the resident’s dignity, upholding their rights and honouring their wishes.  A resident’s right to receive visitors of their choosing is a fundamental aspect of maintaining personal autonomy, emotional well-being, and connection to the community. This right must be respected at all times, and any restrictions should only occur when there is a legitimate and clearly defined concern that visits are contrary to the resident’s best interests. 

Lisa Corrente is a partner in Torkin Manes’ Health Law Group. She regularly represents long-term care home and other residential care facilities in all matters of statutory compliance. If you have any questions about your home’s compliance, please contact Lisa at 416 643 8800.