Common-Law Partner and Medical Decisions in Ontario Without a POA

Your common-law partner has been hospitalized and cannot make their own decisions. Doctors need consent for treatment, and you want to know whether it is your call. The answer is that Ontario has a ranked list, and unmarried partners are on it.

This article walks through the list in plain terms, explains who counts as a spouse or partner for this purpose, and covers what you cannot do without a power of attorney, such as managing money.

The ranked list of decision-makers

Section 20(1) of the Health Care Consent Act, 1996 sets out who may give or refuse consent to treatment for an incapable person, in this order:

• a guardian of the person
• an attorney for personal care
• a representative appointed by the Consent and Capacity Board
• a spouse or partner
• a child or parent (or a children's aid society)
• a parent who has only a right of access
• a sibling
• any other relative

A person ranks only if no one in an earlier paragraph meets the requirements. So if your partner has a power of attorney for personal care naming someone else, that attorney comes before you. If there is no guardian, attorney or Board-appointed representative, a spouse or partner is next.

Why a common-law partner counts

For this Act, two people are spouses if they are married, or if they are in a conjugal relationship outside marriage and they have cohabited for at least one year, are together the parents of a child, or have a cohabitation agreement under section 53 of the Family Law Act. A partner is one of two people who have lived together for at least one year and have a close personal relationship of primary importance in both their lives.

These tests are shorter and different from the three-year test used for spousal support. There is no single common-law date that applies everywhere, so what counts as a spouse depends on the statute.

There is one exception. Spouses who live separate and apart because of a relationship breakdown are not spouses for this purpose.

Requirements and what happens if people disagree

A substitute decision-maker must be capable regarding the treatment, at least 16 years old (unless they are the incapable person's parent), not prohibited by a court order or separation agreement from acting, available, and willing to assume the responsibility.

If equally ranked eligible people disagree, or if no one in the list qualifies, the Public Guardian and Trustee makes the treatment decision. How this applies to your family depends on your situation, so it is worth confirming with a lawyer.

What a partner cannot do without a power of attorney

Treatment consent is only one part of the picture. Without an attorney for property, family including a spouse cannot automatically step in to make financial decisions, and may have to go to court to become a court-appointed guardian. Without an attorney for personal care, family can make some, but not all, decisions, and the Public Guardian and Trustee is a last resort.

A guardian of property manages finances but cannot make personal care decisions. A person can apply to replace the Public Guardian and Trustee as guardian only if they are the incapable person's spouse, partner or relative, and a management plan is required.

To avoid this later, each of you can make a power of attorney. You must be mentally capable, and at least 18 for a property power of attorney or at least 16 for a personal care one. A property attorney can act immediately unless you state otherwise, and you can say it takes effect only on incapacity.

What to do next

• Ask the hospital whether a power of attorney for personal care or a guardian already exists.
• Tell the care team clearly how long you have lived with your partner and whether you share a child.
• Gather documents showing that you live together, such as a lease, bills or a cohabitation agreement.
• Find out whether other relatives disagree with you, and try to talk early with the care team.
• If your partner will need help with money, ask a lawyer about a guardianship application.
• Once your partner recovers, or if you are both well, make powers of attorney for property and personal care.

A lawyer can explain your position if there is a dispute, a doubt about whether you qualify, or a need for court-appointed authority over finances.

Frequently asked questions