Today’s Post by Brianna Fable-Watson, Articling Student at Gowling WLG | Gowling WLG
Ontario courts continue to emphasize that the authority granted to attorneys for personal care is legally constrained and subject to competing statutory rights, particularly in long-term care settings. The decision in Orr v Orr, 2025 ONSC 4986 (CanLII) provides a clear illustration of the limits of a power of attorney for personal care, where the Ontario Superior Court of Justice was asked to determine whether an attorney for personal care could restrict an incapable resident’s adult children from visiting him in the long-term care home where he resided.
The Attorney’s Position: Enforcing Prior Wishes
Gwen, acting as attorney for personal care for her husband Bill, relied on section 66(3) of the Substitute Decisions Act, 1992 (“SDA”), arguing she was required to act in accordance with Bill’s prior expressed wishes. Specifically, she relied on previous statements Bill had made indicating that he never wanted to see his children again. On this basis, Gwen argued that she was not only permitted, but obligated, to prevent contact between Bill and his adult children.
No Formal Direction in the POA Document
The Court noted that Bill’s power of attorney for personal care contained no written instruction or direction requiring Gwen to restrict or prohibit contact between Bill and his children. While Bill’s power of attorney document was professionally prepared by a lawyer and he had expressed general statements about cutting ties with his children, he did not instruct his lawyer to include any formal restriction on contact in the document itself.
Capacity to Accept Visits
The Court also relied on evidence from an initial visit between Bill and his children after he entered long-term care. During that visit Bill immediately recognized his children and engaged with them appropriately and positively. On this evidence, the Court concluded that Bill had capacity during this initial interaction. This was a significant finding because it reinforced that Bill’s reactions in real time were inconsistent with the argument that contact was inherently contrary to his wishes or interests.
The Long-Term Care Context: Statutory Rights Apply
Since Bill was a resident in a long-term care home, the Court also considered the Fixing Long-Term Care Act, 2021 (“FLCTA”). Section 3 of the FLCTA establishes a Resident’s Bill of Rights, requiring every licensee of a long-term care home to ensure that residents’ rights are respected and promoted. These rights include dignity, autonomy, and participation in social relationships.
This statutory framework confirmed that a resident’s right to receive visitors is not merely discretionary but presumptive and protected by legislation. Additionally, this statutory regime operates independently of any direction from a substitute decision-maker. In other words, even where an attorney expresses concern or objection, the long-term care home still has its own legal obligation to uphold resident rights.
Monitoring Was Not Enough to Justify Restriction
After Gwen raised concerns about the children’s visits, the long-term care home implemented monitoring measures to ensure that visits were appropriate and consistent with Bill’s best interests. During these visits, no staff member observed distress, agitation, or harm during visits and Bill continued to respond positively to his children. Despite increased oversight, there was no factual basis to conclude that the visits were harmful.
The Court ultimately concluded that Bill’s presumptive right to receive visits from his children should continue. The Court refused to displace that presumption based on previous family conflict, historical estrangement or subjective or personal concerns raised by the attorney. Instead, the focus remained firmly on Bill’s welfare as demonstrated through observable evidence.
Takeaways from the Case
Orr v Orr is an important reaffirmation of the limits of substitute decision-making authority in Ontario. The decision affirms that a power of attorney for personal care is not a grant of absolute control. Rather, it is a fiduciary role that must be exercised in accordance with statutory duties, including respecting the incapable person’s autonomy and their relationships with others.
The case also highlights the limits of relying on informal or historical expressions of intent. Even strong statements from the person before they became incapable are not determinative, especially where these statements or wishes were never formalized within a power of attorney document or supported by consistent evidence. This shows the courts recognition that capacity is fluid, as well as relationship dynamics.
The decision also reinforces that evidence of harm is the governing threshold when it comes to restricting family contact. Speculation, interpersonal conflict, or subjective concerns are not enough. In the absence of clear evidence that visits are causing distress or danger, the presumption in favour of maintaining relationships will stand.
Overall, Orr v Orr asserts that substitute decision-making is about protection, and not about control. While attorneys of personal care play a critical role in protecting vulnerable individuals, their authority is limited to preserve the individual’s autonomy.
This is a very important point. Excellent treatise on POA Personal Care boundaries.
Thank you. Glad to read this decision. We see this regularly in so far as the attorney for care sees things from their perspective and they are not acting in a ‘fiduciary role that respects the incapable person’s autonomy and their relationships with others.’