As the baby boomer generation ages and requires greater assistance from their kids and grandkids, it is not uncommon to see old rivalries and animosities between children resurface. This is particularly so where the onset of dementia and other health concerns necessitate children caring for their parents and managing their property.
Where siblings disagree over care or administration of property, even with the best of intentions for their parents, it is not uncommon to see one sibling try and prevent the other from visiting with the parent. Such actions can arise out of a concern for the stress the conflict causes to the elderly parent. If your mom lives in a long-term care home or retirement residence (a “home”), the home may also try to restrict visits with her if your sibling – as attorney under her power of attorney or as her substitute decision-maker (“SDM”) – requests it.
As a general principal, neither the home nor an SDM can legally restrict who visits a capable adult. Adults have a right to visit with whomever they choose. This is confirmed by some important provisions of the law of capacity and substitute decisions-making including:
- There is a presumption of capacity – older adults are presumed to be able to decide for themselves who they would like to visit with;
- The test for capacity is situation and decision specific – an older adult may be capable of deciding who they would like to visit with, even if they are not capable of making decisions about their finances or medical treatment;
- Attorneys and guardians have a duty to foster regular contact between the incapable person and the incapable person’s supportive family and friends;
- Attorneys and guardians have a duty to facilitate the incapable person’s autonomy; and,
- Capable decisions should be respected. If an older adult is capable of making the decision to visit with someone, that decision should be respected.
When can an attorney restrict visits?
An attorney for property has authority regarding the older adult’s property only. An attorney for personal care has authority only in relation health care, nutrition, shelter, clothing, hygiene or safety. When there is evidence of a genuine safety issue if a particular person visits, then an attorney for personal care may have authority to restrict or prohibit the visit.
All attorneys for personal care, however, act as a substitute decision-maker for an incapable individual. Whether your mom is incapable depends on what task or decision is in question. She may not be able to make complex financial decisions, but still be able to decide whether or not to speak with someone, since this decision requires only minimal capacity. Unless your mom cannot understand or appreciate a serious safety risk of speaking with someone, she likely has capacity to decide for herself who she visits with.
Restrictions by Homes
Generally, a home cannot prohibit someone from visiting a resident. Section 1 of the Long-Term Care Homes Act, 2007 provides that a long term care home (“LTC”) is “primarily the home of its residents and is to be operated so that it is a place where they may live with dignity…and have their…social, spiritual and cultural needs adequately met.” The Residents’ Bill of Rights adds that “[e]very resident has the right to communicate in confidence, receive visitors of his or her choice and consult in private with any person without interference” and that “[e]very resident has the right to have his or her participation in decision-making respected.” (s. 3 of the Act). Retirement homes or other residences for older adults also do not have authority to restrict an older adult’s visitors, just as would be the case for any landlord under the Residential Tenancies Act, 2006.
Of course, everyone should be courteous and respectful of the staff and other residents of a home including abiding by mealtime and medication administration schedules when possible. Homes also do owe residents a duty of care. This means that homes may, in limited circumstances, take action that otherwise infringe on an older adult’s rights where there is a serious safety concern.
Where there is a dispute over who is allowed to visit an older adult, all parties involved, including the home, family members, substitute decision-makers, and the older adult, are advised to seek legal advice so that they are fully aware of their rights and duties. Please do not hesitate to reach out to our team.