Easing a painful process
A new law enables relatives to manage missing persons’ affairs.
According to the latest report published by National Crime Agency, around 350 are people reported missing every day. Although the majority of people are found within 24 hours, 1% of cases remain unsolved for over a year. In addition to the distress this causes, families are often left with no means of maintaining or managing the affairs of the missing person. Without the legal authority to act on a missing relative's behalf, families can struggle to engage institutions and keep their relative's affairs in order. From banking, mortgages and insurance, to benefits and dealing with utilities, families report various problems and, in the worst cases, the missing person's finances may be damaged beyond repair and homes may be lost.
The situation is no different when it comes to considering travellers that go missing on holiday – even if an accident or disaster would suggest a reappearance is unlikely. For instance, when an aircraft goes missing (whether private light aircraft or high profile cases, such as Malaysia Airlines flight 370 which went missing between Kuala Lumpur and Beijing in 2014) it is generally presumed that there are no survivors. Whilst the balance of probabilities may indicate it to be true, the missing aircraft passengers cannot automatically be declared legally dead at this stage.
Understanding current liability
Under the Presumption of Death Act 2013, families may make an application to the High Court for a declaration of presumed death, before the usual seven-year period, if evidence exists to suggest the person has died. Unfortunately, this process can take a significant amount of time, sometimes years, to go through the Court while evidence is gathered and expert witnesses are called.
Costs for the court application, as well as any ensuing legal costs, form part of any claim made by the families of the missing passengers. Additionally, the families must make a significant emotional investment at a time when they are already distraught from their loss.
What is changing?
Until recently, no legal process existed which allowed families to manage the affairs of those missing people whilst the court application was in process. To cut through the bureaucracy and provide a solution, on 27 April 2017, the Guardianships (Missing Persons) Act 2017 achieved royal ascent and is expected to be fully enacted in 2018.
This Act will enable any person with a ‘sufficient interest’ in a missing person’s property to apply to the Court of Protection for a guardianship order, allowing them to manage and maintain the property and financial assets of the a missing loved one after they have been missing for 90 days.
If granted by the court, a professional guardian can be appointed for up to four years (after which time the guardian can be reappointed), or until a declaration of presumed death is received. The appointed guardian will be granted powers and duties similar to those of a deputy, which means they must act in the best interests of the missing person, under the supervision of the Office of the Public Guardian.
The costs of the application to the court, as well as the costs for a professional guardian for up to seven years would, will most likely be added to the costs of the claim. The additional liabilities these processes might incur are counterbalanced by the positive effects of a speedier resolution for family members and other interested parties, such as banks and mortgage lenders.
The law is due to be enacted over the next year, for more details visit: Missing People - The campaign for a system of guardianship is part of Missing People’s wider Missing Rights campaign.
This article was published in Travel Trade Gazette on 10 August 2017.
For more information please contact Glen Miles, Partner, Vulnerable People.
Published: 10 Aug 2017