Assistance and legal incapacity
Who can manage a CTP claim for an adult who cannot act for themselves?
The required authority depends on the adult's capacity and the stage of the claim
An adult who can understand and authorise help may nominate a friend, family member or lawyer to communicate with the insurer. If the person is under a legal incapacity, informal family assistance may not be enough, especially in PIC proceedings. MAI Act s 7.47, PIC Rule 97 and Procedural Direction PIC14 provide for an appointed representative in the Motor Accidents Division. Existing guardianship, financial-management or court arrangements must also be checked rather than assumed.
A serious brain injury, cognitive impairment, psychiatric condition, communication disability or another condition can make claim administration difficult. Capacity is decision-specific and can change. Needing language assistance, help reading forms or physical help signing does not by itself mean a person lacks legal capacity.
The first practical task is to identify what the injured person can understand and decide, what authority already exists and what action is needed now. A relative should not sign a claim form, settlement or PIC application merely because they are next of kin. The insurer, lawyer and Commission need a lawful and transparent basis for receiving instructions and handling personal information.
Reviewed by Herman Chan, Stephen Young Lawyers
When can a friend or family member assist?
Guidelines clause 4.9 recognises a “friend”, including a family member, who assists with the claim and has authority from the claimant to give and receive information. The authority can be revoked or limited. This can support calls, correspondence and document organisation where the claimant remains able to authorise the help.
A friend is not automatically a legal representative, appointed representative, substitute decision-maker or owner of the claim. They should stay within the written authority and keep the claimant involved as far as possible. The insurer may require identity and authority documents before discussing health, earnings or claim information.
What changes if the adult is under a legal incapacity?
Procedural Direction PIC14 explains that legal incapacity can include a person under guardianship, a protected person, or an incommunicate person whose disability prevents receiving communications or expressing their will about property or affairs. The label should not be applied casually. Current medical and legal evidence may be required.
For a Motor Accidents Division proceeding, s 7.47 says a claimant under legal incapacity cannot make or carry on a Part 7 application except through an appointed representative. PIC14 and Rule 97 address appointment, suitability, consent, absence of adverse interest, duties and removal. The appointed representative can be a relative, friend or other suitable person and does not have to be a lawyer, but must act in the claimant's interests and comply with Commission procedure.
Who can give instructions, settle and receive money?
Authority to exchange information is not necessarily authority to settle a damages claim, manage settlement funds or execute a release. Existing guardianship orders, financial-management orders, enduring instruments, court requirements and the terms of any appointment need to be examined for the particular decision.
A damages claim for a person under legal incapacity is exempt from ordinary PIC claims assessment under the Regulation and may require court proceedings and approval arrangements. Do not assume the same person who manages day-to-day insurer contact can bind the injured person to a final settlement. Specific advice is required before an offer or release is accepted.
Practical next steps
How to establish the correct representation
Start with function and existing authority, then use the process required for the next decision.
Identify the immediate task
Separate routine communication, claim lodgement, treatment consent, PIC proceedings, legal instructions and settlement. Each may require different authority.
Check the person's present capacity
Obtain appropriate clinical assessment where capacity is uncertain. Avoid treating diagnosis alone as proof that the person cannot decide.
Collect existing instruments
Locate guardianship, financial-management, enduring power or court documents and check their scope and currency.
Give the insurer clear authority
If the claimant can authorise a friend or lawyer, provide a written authority stating who may receive and provide information and any limits.
Apply for appointment where required
For PIC motor-accident proceedings involving legal incapacity, follow PIC14 and Rule 97 rather than relying on informal next-of-kin status.
Evidence
Documents that may be needed
Only collect documents relevant to the authority and decision in question.
- Claimant identity and claim acknowledgement.
- Written authority signed while the claimant can give informed authority.
- Current medical evidence about cognition, communication and decision-making function.
- Guardianship, financial-management, enduring power or court orders.
- PIC14 appointed-representative application and proposed representative consent.
- Evidence that the proposed representative has no adverse interest and can perform the role.
- A list of urgent claim, treatment, payment or hearing dates.
- Secure contact and privacy arrangements for the claimant and representative.
Important distinctions
- Being a spouse, parent, adult child or next of kin does not automatically confer authority to settle or conduct PIC proceedings.
- An interpreter communicates language and is not a substitute decision-maker or legal representative.
- A physical inability to sign does not necessarily mean a person cannot understand and direct the claim.
- A diagnosis of brain injury or psychiatric illness does not automatically establish legal incapacity.
- The appointed representative must act for the claimant, not pursue a competing family or financial interest.
Timing
Urgent dates still need protection
Capacity and appointment questions should be raised early rather than after a period has expired.
- The ordinary claim, police-reporting and review periods can still apply while representation is being arranged.
- Tell the insurer and PIC promptly if capacity or communication support affects compliance with a request or direction.
- A person under legal incapacity is relevant to some late-claim and procedural provisions, but it should not be assumed that every delay is automatically excused.
- Settlement and court time requirements need individual review where legal incapacity is involved.
Frequently asked questions
- Can a family member speak to the insurer?
- Yes, where the claimant can authorise that assistance and the insurer receives appropriate authority. The family member's role is limited by the authority and is not automatically legal representation.
- Does the representative have to be a lawyer?
- An appointed representative under PIC14 need not be legally represented and may be a suitable relative, friend or other person. Legal advice may still be useful because the representative carries procedural responsibilities.
- Can an interpreter sign or decide for the claimant?
- No. An interpreter facilitates communication. They do not provide legal advice or substitute their decision for the claimant or appointed representative.
- What if capacity improves?
- Capacity can change. The insurer, lawyer or Commission should be informed, and any appointment or authority reviewed under the applicable rule or order.
- Can the appointed representative receive settlement money?
- Do not assume so. Authority to conduct a PIC proceeding is not automatically authority to manage the claimant's property. Financial-management and court requirements need checking.
- Can the insurer refuse to speak to a relative?
- It can require evidence of identity and authority before disclosing personal information. Provide a clear written authority or the relevant formal appointment rather than relying on the family relationship.
Related NSW CTP guides
Official sources
- Motor Accident Injuries Act 2017 (NSW), current in-force version
- SIRA Motor Accident Guidelines, current published version
- Personal Injury Commission Act 2020 (NSW), current in-force version
- Personal Injury Commission Rules 2021 (NSW), current in-force version
- Personal Injury Commission Procedural Direction PIC14: persons under legal incapacity
The legislation and official guidance linked above are the public-source basis for this page. The correct response depends on the accident date, the type of claim, the insurer communication and the evidence already supplied.
Authority to act
Clarify who can manage the claim before an urgent decision is made
Send the relevant authority or guardianship documents, current claim decisions and any PIC notice. We can identify what assistance or appointment is needed for the next step.
General information only: This page explains the current NSW motor accidents scheme in general terms and is not legal advice. It does not guarantee claim acceptance, continued benefits, a review outcome or damages. Keep acting on any stated time limit while obtaining advice.