Jan212026
Guardianship Q&A Series

What can a spouse do if there is a restraining order and they are being blocked from seeing their spouse in assisted living? – North Carolina

Short Answer

In North Carolina, a restraining order (often a DVPO) can legally limit or prohibit contact, even if the other person lives in assisted living. At the same time, assisted living and nursing facilities generally must allow residents to receive visitors of their choice, unless a valid court order or a narrow safety/health restriction applies. Practical next steps usually include (1) confirming exactly what the restraining order prohibits, (2) asking the court to modify it to allow limited, supervised, or facility-based contact, and (3) if decision-making is disputed because of dementia-like impairment and a questionable power of attorney, asking the Clerk of Superior Court to address capacity/guardianship issues that affect who can control access.

Understanding the Problem

In North Carolina, can a spouse visit a spouse in assisted living when a restraining order limits contact and a third party claims authority under a durable power of attorney? The decision point is whether the restraining order (and any related court terms) legally bars in-person visits, calls, or messages, even if the resident spouse would otherwise want contact. This question often comes up when one spouse has dementia-like symptoms, an adult relative asserts control based on paperwork, and the other spouse believes the resident’s true wishes are being overridden.

Apply the Law

North Carolina law pulls in two overlapping rules. First, a court order restricting contact controls what contact is allowed and can be enforced by law enforcement and the court. Second, long-term care facilities generally must allow a resident to receive visitors of the resident’s choice, but facilities can still follow valid court orders and enforce reasonable safety and infection-control rules. When decision-making authority is disputed because of cognitive decline and a contested power of attorney, the Clerk of Superior Court has jurisdiction over guardianship proceedings and related disputes, and the clerk can enter orders to protect the person and address who should make decisions.

Key Requirements

  • What the restraining order actually says: The exact terms matter (no contact vs. limited contact; distance limits; third-party contact; exceptions for medical or facility settings). The facility will usually follow the written order as drafted.
  • The resident spouse’s visitation rights at the facility: Assisted living and nursing facilities generally must allow residents to receive visitors of their choice, subject to health/safety limits and other applicable government guidance.
  • Who has legal authority to make decisions if capacity is impaired: If a durable power of attorney is being used to block contact and there are concerns about capacity or undue influence when it was signed, a guardianship-related filing with the Clerk of Superior Court may be the forum to resolve who can make decisions and what contact is appropriate.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe dementia-like symptoms, a durable power of attorney allegedly signed without the spouse’s knowledge, and a relative using that document to control access while a restraining order exists. If the restraining order prohibits contact, the facility will typically deny visits regardless of marital status, because violating a court order creates risk for everyone involved. If the order allows some contact (or can be modified), the facility’s visitation-rights duties and the resident spouse’s expressed preferences become central, and the dispute may shift to whether the relative has valid authority under the power of attorney and whether the resident spouse has capacity to choose visitors.

Process & Timing

  1. Who files: The spouse seeking contact (often through an attorney). Where: The court that issued the restraining order in North Carolina. What: A motion to modify the restraining order to allow limited contact (for example, supervised visits at the facility, scheduled calls, or contact through staff). When: As soon as possible, because the order remains enforceable until changed by the court.
  2. Parallel track if authority/capacity is disputed: If the resident spouse’s decision-making is impaired and a relative is using a power of attorney to block contact, an interested person can file a verified incompetency petition with the Clerk of Superior Court to start a guardianship proceeding. The clerk can then address who should make decisions and enter protective orders tailored to the person’s welfare.
  3. Facility coordination: Provide the facility administrator a copy of any modified order and request a written visitation plan consistent with the order and the facility’s policies (including any screening or supervision requirements). If the facility is restricting visits beyond what the law and court order allow, request the facility’s written notice of visitation rights and escalation contact information.

Exceptions & Pitfalls

  • Violating the order to “just check in”: Even well-intended contact (a visit, a call, a note delivered through staff, or contact through a third person) can violate an order depending on its wording. The safest route is to seek a court-approved modification.
  • Assuming marriage automatically guarantees access: Facilities generally must honor resident visitation rights, but they also must follow court orders and can impose reasonable safety and infection-control limits.
  • Power of attorney confusion: A power of attorney can create real authority, but it does not automatically override a court order, and it can be challenged if capacity or undue influence is a concern. When capacity is genuinely in question, guardianship proceedings are often the forum where the clerk can impose structure and oversight.
  • Not using the right forum: The restraining order must be addressed in the issuing court. Guardianship and competency issues are handled by the Clerk of Superior Court under Chapter 35A. Mixing the two without a coordinated plan can delay relief.

Conclusion

In North Carolina, a restraining order can lawfully block a spouse from visiting a spouse in assisted living until the issuing court changes the order, even though facilities generally must allow residents to receive visitors of their choice. When dementia-like impairment and a disputed durable power of attorney are part of the conflict, the Clerk of Superior Court can be the proper forum to address competency/guardianship and decision-making authority. The most direct next step is to file a motion in the issuing court to modify the restraining order to permit limited, clearly defined contact.

Talk to a Guardianship Attorney

If there is a restraining order and a family member is using paperwork to block contact with a spouse in assisted living, a coordinated court strategy can matter. Our firm has experienced attorneys who can help explain options, timelines, and the right forum in North Carolina. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Guardianship Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.