Frequently Asked Questions About Missing Persons Law
It can be really difficult to understand the legal options that are available to you as the relative of a missing person. We’ve put together a comprehensive list of frequently asked questions to help get you begin to explore the process.
If you have a question that isn’t answered here, please don’t hesitate to get in touch. Our trusted solicitors will be more than happy to help.
Who can apply to be a guardian if the missing person didn’t have any close family?
The court usually look most favourably on guardianship applications made by spouses, parents, siblings or grown-up children of the missing person.
However, in some circumstances there isn’t anyone who fits this criteria. In these cases, the court will consider appointing someone who has a clear interest in the missing person’s affairs, such as an unmarried partner, a distant family member, a business partner, or someone who had been appointed as an executor. The court will consider:
• The proposed guardian’s relationship with the missing person.
• What the proposed guardian’s opinions are of the missing person, whether they would likely act in their best interest and whether there would be any conflict of interest.
• Whether the proposed guardian has the skills and ability to act as a guardian.
If there isn’t a suitable individual, the court may consider appointing a professional guardian such as a solicitor.
What if there’s more than one person who wants to apply to be a guardian?
If there is more than one person who wishes to be appointed as a guardian for a missing person, the court will decide who they think is most appropriate. All individuals will need to submit an application for the court to consider. A solicitor with experience in missing persons law will be able to advise you on whether your application is likely to be successful.
What tasks can a guardian do on a missing person’s behalf?
The exact rights a guardian has will depend on what has been specified in the guardianship order issued by the court. However, a guardian for a missing person will usually have the legal right to act in a similar way to someone who has been appointed as an attorney until a finance and property power of attorney. They will be able to do things such as:
• Manage mortgage and/or rent payments.
• Make decisions about selling or re-mortgaging property.
• Administer bills and outgoings.
• Manage bank accounts and invest money as appropriate.
• Recover any debts that were due to the missing person.
• Take over any ongoing legal proceedings on the missing person’s behalf.
• Give gifts to the missing person’s loved ones to mark significant life events.
How long will someone act as a guardian for?
Guardians can be appointed for a maximum period of four years. This can usually be extended if necessary. A guardianship order can also be brought to an end sooner in certain circumstances, for example if the missing person returns, if the missing person is declared dead, or if the person who has been appointed as guardian is no longer able to act.
Is it possible to administer the estate of a missing person?
A person’s estate cannot be administered until they have died or have been legally declared presumed dead. Therefore, the estate of a missing person cannot be administered as per their Will or the intestacy rules unless a Declaration of Presumed Death has been granted.
Can a Will be made on behalf of a missing person?
There is not currently any legal mechanism for making a Will on behalf of a missing person. If a Declaration of Presumed Death is granted for a missing person who had not made a Will, their estate will need to be distributed as per the intestacy laws. If you have concerns about this, we’d recommend seeking specialist legal advice.
How do you know when it’s the right time to apply for a Declaration of Presumed Death?
Making the decision to apply for a Declaration of Presumed Death for a missing person is a very personal thing. Some people might be ready to make an application as soon as they become legally able to do so, for others it might not feel like the right thing to do for many years.
In some cases, applying for a Declaration of Presumed Death might allow the loved ones of the missing person to move on. Once this document has been issued, it would be possible for the missing person’s estate to be administered and for the missing person’s loved ones to claim any life insurance pay out that might be due. It would also give the spouse or civil partner of the missing person the legal right to remarry or enter a new civil partnership.
There is no legal requirement to apply for a Declaration of Presumed Death if you do not feel that it’s the right thing to do. There is also no cut off point: you can decide to apply at any point, even if many more than seven years have elapsed since the person went missing.
What kind of evidence would you need to apply for a Declaration of Presumed Death before a period of seven years?
There are situations where it might be appropriate to apply for a Declaration of Presumed Death before a period of seven years have elapsed. This happens when there is clear evidence that the person has died, for example if they went missing during a natural disaster.
If you apply for a Declaration of Presumed Death under these circumstances, you will need to provide evidence with your application. A solicitor who specialises in missing persons law will be able to help you put this evidence together, but usually it will consist of things like police reports, witness statements and financial records. If the missing person left a suicide note, this would be considered strong evidence that they have died.
What if a missing person comes back after a Declaration of Presumed Death has been granted?
If a missing person is found alive, or if evidence comes to light that suggests they may still be living, an application can be made to the High Court to change or cancel a Declaration of Presumed Death.
However, even if a Declaration of Presumed Death is cancelled, it will not reinstate the marriage or civil partnership of the missing person. Depending on the original wording of the declaration, it is also unlikely to mean that any assets that were administered as part of the missing person’s estate would be automatically recalled. For example, if property belonging to the missing person had been sold in good faith, the sale could not be reversed.
If a life insurance policy had paid out as a result of the Declaration of Presumed Death and it later turns out that the person is not dead, the life insurance may need to be repaid. The High Court often requires that an insurance policy is taken out at the time of a Declaration of Presumed Death being granted to protect against the financial implications of this.
Missing Person Law Charges
For much of the work we undertake here at Roche Legal, we can offer a fixed fee. For non-fixed fee work, we charge based on our time spent on your matter in accordance with our hourly rates applicable at the time.