An Update on the New Missing Persons Guardianship Laws

It was back in June 2017 when we first wrote about looking after the property of a missing person. At the time, a new law, the Guardianship (Missing Persons) Act 2017, had recently received Royal assent. This law promises to make matters easier for families to deal with, and look after, the property of someone who had gone missing, by allowing them to apply for a Guardianship Order from the High Court.

There are a number of procedures, safeguards and restrictions to the new law. More detail on these, and a look at how the new law might work in reality, can be found in our previous blog post.

However, nearly two years later, the law still hasn’t been brought into force. The secondary legislation, the legal instruments needed to set out the practicalities of the new provisions, have not been implemented. These additional rules and laws were expected to be finalised in October 2018, but the Government then announced it would need to delay this until at least July 2019.

Apparently, this is still the timetable the Government are working towards. In a recent parliamentary debate, the Government went on record saying that the new law would be in force by July 2019. Nothing is certain until the day it actually happens, however!

The Missing Persons Guardianship Code of Practice consultation

A Code of Practice will be published when the Guardianship (Missing Persons) Act 2017 takes effect, which aims to assist families and loved ones in using and understanding the new law.

The Government has been consulting on this Code of Practice and, in February 2019, Roche Legal participated in the consultation. Our involvement was at the request of the policy team at Missing People, a leading UK missing persons charity.

Our main concerns with the proposed Code of Practice and its implementation were:

1. There seemed to be a large amount of unnecessary information. For example, the Code at present includes a lot of information relating to matters prior to any application to Court, even though the Code is unlikely to be read by anyone prior to an Guardianship Order being made. The Code is intended to be a Code of Practice for Guardians – in other words, people who’ve already been appointed by an Order of the Court.
2. We found the language of the Code to be unnecessarily complex and technical, making it more difficult for people with no legal knowledge to understand it. This runs counter to the purpose of the Code, which is to help as many people as possible understand and use the new law without having to interpret the Act itself.
3. On a procedural matter, there was a problematic proposal that the Guardianship application might require a named ‘Defendant’ – and that this would be completed using the missing person’s name. We do not feel this is an appropriate label to use when a person is missing, as it implies some wrongdoing on their part.

Overall, we believe that the Code and all other aspects of implementing the Act need to be tailored to people without legal knowledge to make the process as easily understandable as possible for anyone facing the difficulties of a missing loved one. The new provisions are intended to make dealing with their missing loved one’s property more straightforward. Also, by definition, the people making Guardianship applications under the Act will be going through a deeply upsetting period. As such, the process and form of the application should not be a source of hassle nor should it add to the anguish of those applying.

We are aware that a number of our clients are keen to make use of the new Guardianship provisions when they finally come into force. If you would like to join them on our waiting list, to be contacted when Guardianship applications for missing persons become available, please get in touch with us.

Advice from Roche Legal

At Roche Legal, we are reassuring experts, who specialise in:

• Court of Protection
• Presumption of Death Applications
• Powers of Attorney
• Wills
• Probate and Estate Administration
• Contested Probate and Will Disputes
• Trusts and Estate Planning