I. Introduction

Personal injury lawyers routinely represent clients as against their accident benefits insurer, who do not have the requisite capacity to instruct counsel, whether due to serious and permanent physical or psychological injuries they have sustained or due to the fact that they are a minor, and cannot represent themselves. The implications to an accident benefits case are far reaching; however, it is apparent that their impact at both the onset and conclusion of a case is of utmost importance.

While an individual can be appointed to represent an applicant during the dispute resolution process by an adjudicator at the Financial Services Commission of Ontario (hereinafter referred to as “FSCO”), without the appointment of a litigation guardian or an established Power of Attorney at the outset of a case, this often results in delays in the provision of required and urgently needed accident benefits. Similarly, at the end of the case, when settlement is reached, an established litigation guardian or Power of Attorney is highly effective in the resolution of a file, as court approval is necessary for the party under disability, and the lack of an established litigation guardian or Power of Attorney often results in unnecessary delays.