Guardianship (Missing Persons) Act 2017 is Finally Coming into Force

A crucial law to help the families of missing persons will be coming into force on 31 July 2019. It has been a long wait, but it will soon be possible for the families of people who have gone missing to apply for powers to look after the missing person’s affairs during their absence.

Ever since it was passed in April 2017, the Guardianship (Missing Persons) Act 2017 has been in something of a state of limbo. All of its provisions had been approved by parliament, but it still lacked the necessary ‘secondary’ legislation from government to bring it into force. Now these statutory instruments have been put in place and the whole Act will be in force by the end of the month. 

What’s so important about the Guardianship (Missing Persons) Act 2017?

The Act is perhaps better known as ‘Claudia’s Law’, named in honour of Claudia Lawrence, a young woman from York who went missing in 2009. The Act has been the result of a hard-fought campaign; at the forefront of which has been Claudia’s father, Peter Lawrence OBE, the charity Missing People, and others keen to help ease the distress, and legal difficulties, faced by families of people who have gone missing.

The law will allow certain close relatives to apply to become Guardians of some, or all, of a missing person’s property. Doing so will grant them legal authority to deal with that property, in a similar way to Attorneys or Deputies, under Lasting Powers of Attorney or Deputyship Orders respectively.

Up to now, and before this Act comes into force, families who need to manage the affairs of a missing person can only do so by obtaining a Declaration of Presumed Death. Naturally this is a step which many families do not want to take when holding out hope that their loved one will return. Furthermore, a Declaration of Presumed Death can often only be obtained when someone has been missing for at least 7 years. It means, for the whole of that 7-year period, amidst the anguish and uncertainty, families are completely unable to manage and take care of their missing loved one’s property. There are cases when this 7-year rule won’t apply, but they are unusual.

The Guardianship (Missing Persons) Act 2017 offers a better alternative for these situations. We took a detailed look at the Act’s provisions in an earlier blog post, and these are unchanged in all essential respects.

However, here’s a summary of the Act’s main effects:

• A new kind of Guardianship role is created.
• Close family members can apply to the court to become a Guardian.
• Guardians have legal authority to deal with the missing person’s property and financial affairs.
• The missing person must have been missing for at least 90 days. ‘Missing’ is defined within the Act but its definition broadly covers what most people would recognise as missing.
• Guardians must act in the best interests of the missing person at all times. They are also accountable to the court and must meet several responsibilities, such as keeping records when fulfilling their role.

What recent developments have there been?

The Act’s provisions have not changed since it was passed in 2017. However, the new statutory instruments, created by the government last month to bring the Act into force, have led to a few developments:

1. The main development is that the whole Act will come into force on 31 July 2019.
2. The Lord Chancellor has issued a code of practice to help people understand and use the law. This covers how to apply to become a Guardian, and how to carry out the role. The code is important as the Act states that Guardians must adhere to them in their duties
3. The High Court has been designated as the court with responsibility over the provisions in the Act so any applications etc will be made to them. Until now, it was uncertain whether it would be the responsibility of the High Court or the Court of Protection.

How Roche Legal can help

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