Out of sight but never out of mind
According to the latest report published by National Crime Agency, there are around 350 people reported missing every day. Although the majority of people are found within 24 hours, 1% of cases remain unsolved for over a year.
Until recently, no legal process existed to allow the families to manage or maintain the affairs of a missing person in their absence. Without the authority to act on their behalf, families can struggle to engage institutions, or even ensure that dependents continue to be provided for. In the worst cases, the missing person's finances may be damaged beyond repair and homes may be repossessed. In addition to the emotional strain on a missing person’s family, this can add a level of financial stress, as they may assume responsibility for the children, or seek to make payments from their own funds to ensure that assets are not lost. Under the Presumption of Death Act 2013, families had to wait up to 7 years to apply for a declaration of presumed death in order to act, leaving both them and the lenders in limbo.
This is all going to change as the Guardianships (Missing Persons) Act 2017 achieved Royal Assent on 27 April. Nicknamed ‘Claudia’s bill’ (after Claudia Lawrence, who went missing in 2009), it is expected to be fully enacted in 2018.
The new law will allow a person, most likely a family member (or legal professional who has been instructed by the family), to apply for a guardianship order to manage the property and financial assets of a missing person after 90 days. If an order is granted by the Court, it will be in place for up to 4 years, after which time the guardian can apply to be reappointed. A guardianship order will not automatically be revoked if the person is found alive, so it will be the responsibility of the guardian to inform the Court. The order will however be revoked on proof of the missing person’s death, or on the declaration of presumed death.
Much of the new legislation is modelled on the Mental Capacity Act 2005, meaning there are significant similarities to existing Deputyships, some of which are highlighted below:
Guardians will be monitored by the Office of the Public Guardian and may be required to submit accounts. They should therefore keep accurate records of all payments in and out of accounts held.
A guardian will be expected to act in the best interests of the missing person. In making decisions, the guardian:
should consider (as much as reasonably possible) any feelings previously expressed by the individual, or beliefs, or other factors that may have influenced them
must consider the consequences of any actions
Once in place, the act will provide much sought after support for the family of a missing person. Due to the requirements of the guardianships, however, it is best to seek advice before an application is made.
For more information about the new legislation, or advice on applying for a guardianship order, please contact Glen Miles, Partner, Head of Vulnerable People.
Published: 11 Jul 2017