The long-awaited Guardianship (Missing Persons) Act 2017 comes into force in England and Wales on 31 July 2019. The Act was given Royal Assent in April 2017 and will be well received by many.
Until now, families of missing persons have had no legal authority to look after and protect the property and financial affairs of a missing family member. The new legislation creates a framework for trusted persons to apply for legal status via a new form of guardianship order. This will provide them with the authority to act in the best interests of the missing person by continuing to administer their property and financial affairs on their behalf.
The Act is informally known as Claudia’s law, named after the daughter of a former solicitor who campaigned for the law after his daughter’s disappearance in 2009.
A person with sufficient interest may apply to the High Court for appointment after a person has been deemed missing for a period of 90 days ending with the day on which the application for the guardianship order is being made.
What is meant by “missing persons”?
The Act includes provision for individuals who are absent from where they usually live, and absent from their usual daily activities. Additionally, they must satisfy one of the following conditions:
- if the person’s whereabouts are not known at all, or are not known with sufficient precision, to enable the person to be contacted for the purposes of decisions relating to their property and financial affairs.
- if the person is unable to make and/or communicate their decisions and the reason for that is something beyond the person’s control. This does not include a person who cannot make a decision through lack of capacity.
Under the new law, a missing person will include someone who is missing in the UK or abroad; and victims of kidnap or hostage. In addition, individuals who are detained, whether in prison or another place, are also treated for the purposes of this Act as absent from their usual place of residence and usual day-to-day activities.
Who can apply to become a guardian?
A person applying to become a guardian must be suitable, at least 18 years old, consent to the application and always act in the best interests of the missing person. Their ability to act will be assessed by the High Court who will consider matters such as their relationship with the missing person, their skills and their knowledge to fulfil such a role and any potential conflict of interests.
The duties imposed on the guardian will be strongly supervised by the Office of the Public Guardian (“OPG”) and will include the duties to act in good faith and exercise reasonable care and skill in financial dealings. The High Court may also impose specific duties on guardians to include conditions and/or restrictions and in some circumstances may give specific directions to a guardian on what they can and cannot do.
The guardian’s role is similar to that of a person acting as an attorney: under a Lasting Power of Attorney, they will be able to do anything that the missing person could have done themselves, such as selling the missing person’s property, paying bills or discharging debts and other obligations. The guardian will not legally own the property, but simply have control over it whilst the person is missing.
The implementation of the Guardianship (Missing Persons) Act 2017 was passed to help families trying to cope with the effects of the disappearance of a loved one. Prior to 31st July 2019 it was only possible to deal with a missing person’s affairs after they have been declared deceased. The Act will be welcomed by many and will help to reduce the burden and stress by enabling families to deal with the property and affairs of a missing person until they return home.
