- Family, including a spouse, cannot automatically step in to make financial decisions for someone who is incapable.
- A power of attorney for property lets you choose who manages your money, and you must be mentally capable to make one.
- Whether your partner can witness your power of attorney depends on whether they meet the Substitute Decisions Act definition of spouse or partner, and you need two witnesses in all cases.
- Without a power of attorney, a court-appointed guardian may be needed, which takes time and a formal application.
You live with your partner, share bills and a home, and one of you has a serious accident or illness. Many couples assume the other person can simply log in to the bank account and keep things running. For financial decisions, that is not how it works.
This article explains in plain terms what happens to your finances if you cannot manage them, why being common-law does not change the starting point, and how a power of attorney for property can fill the gap. It is general information, not advice on your own situation.
No automatic authority, even for a spouse
If you have not named an attorney for property, family members including a spouse cannot automatically step in to make financial decisions for you. They may have to go to court to become a court-appointed guardian.
That rule applies to married couples too. For common-law partners there is an extra layer of uncertainty, because different laws define who counts as a spouse or partner in different ways. How this applies depends on your situation, so it is worth confirming with a lawyer.
What a power of attorney for property does
A power of attorney for property is a document in which you choose a person, your attorney, to manage your finances. You must be mentally capable to make one, and you must be at least 18.
Two features are worth understanding before you sign:
- A property attorney can act immediately unless you state otherwise. You can say that the power takes effect only if you become incapable.
- A power of attorney for property is "continuing" if it says so, or if it expresses the intention that the authority may be used while you are incapable.
The second point matters most for the situation in this article. If the document is not continuing, it may not do the job you wanted it to do when you are unwell, so the wording is worth getting right.
Signing it properly, and who cannot witness
A power of attorney for property must be signed in the presence of two witnesses. Certain people are barred from acting as witnesses, including the attorney, the attorney's spouse or partner, and your own spouse or partner.
If your common-law partner meets the Substitute Decisions Act definition of spouse or partner, they cannot be one of your witnesses, even if you are naming them as your attorney. If you name a friend or sibling as attorney, that person's spouse or partner also cannot witness. Plan for two independent adults to be present.
The Substitute Decisions Act, 1992 uses its own definition of spouse. It includes a person in a conjugal relationship outside marriage who has cohabited with you for at least one year, who is the parent of a child with you, or who has a cohabitation agreement with you under section 53 of the Family Law Act. A partner is someone you have lived with for at least one year in a close personal relationship of primary importance.
Money decisions versus health decisions
A power of attorney for property covers finances only. Health and personal care decisions are handled differently, and the rules for who qualifies as a spouse or partner are not the same everywhere.
| Topic | Financial decisions | Treatment decisions |
|---|---|---|
| Who steps in with no document | No one automatically; a court-appointed guardian may be needed | A ranked list that includes a spouse or partner |
| Role of a common-law partner | Not automatic; a document naming them is the clear route | Can rank as a spouse or partner under the Health Care Consent Act, 1996 |
| Time living together | One year for the Substitute Decisions Act definitions, or a child, or a section 53 agreement | One year, a child together, or a section 53 agreement for a spouse; one year for a partner |
| Last resort | Court-appointed guardian | Public Guardian and Trustee if no one on the list qualifies |
For treatment decisions, a person on the list must also be capable, at least 16, available and willing, and spouses who live separate and apart because of relationship breakdown are not treated as spouses for that purpose. A separate power of attorney for personal care lets you name someone for those decisions, and you must be at least 16 to make one.
If there is no power of attorney: guardianship
Without a power of attorney, the usual route is guardianship of property. A guardian manages finances but cannot make personal care decisions. An application can be made to the Superior Court of Justice or to the Office of the Public Guardian and Trustee.
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. This process is slower and more formal than signing a power of attorney while you are well, and it may leave your partner waiting for authority while bills continue to arrive.
What to do next
- Decide who you trust to manage your money, and name a backup in case your first choice cannot act.
- Decide whether the power should start immediately or only if you become incapable, and make sure the wording says it continues during incapacity.
- Arrange two independent witnesses who are not your partner and not the attorney's spouse or partner.
- Consider a separate power of attorney for personal care so health decisions are also covered.
- Tell your partner and your attorney where the signed documents are kept.
- Ask a lawyer to review the wording if your finances include a business, jointly owned property or debts shared with your partner.
A will is a separate document, and a lawyer can explain how the two fit together.
Frequently asked questions
Can my common-law partner access my bank account if I am incapacitated?
Not automatically. 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 guardian. Whether a joint account helps depends on the account terms, so ask your bank and a lawyer.
Can my partner witness my power of attorney?
It depends on whether your partner counts as your spouse or partner under the Substitute Decisions Act. A grantor's spouse or partner is barred from witnessing, as is the attorney and the attorney's spouse or partner. The Act defines spouse and partner using tests such as one year of cohabitation, a child together, or a section 53 cohabitation agreement. The safest approach is to use two other adults, and a lawyer can confirm how this applies to you.
How long do we need to have lived together to be treated as spouses?
It depends on the law. For the Substitute Decisions Act, a person who has cohabited for at least one year in a conjugal relationship, is the parent of your child, or has a section 53 cohabitation agreement with you is included as a spouse. Other statutes use different tests, so there is no single date.
Can I make a power of attorney for property that only starts if I become incapable?
Yes. A property attorney can act immediately unless you state otherwise, and you can say it takes effect only on incapacity. Clear wording is important, so consider having a lawyer review it.
Sources
- Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (e-Laws) — Ontario e-Laws
- Ontario.ca – Make a power of attorney — ontario.ca
- Substitute Decisions Act, 1992, S.O. 1992, c. 30 (e-Laws) — Ontario e-Laws
- Ontario.ca – Guardianship — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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