It has been estimated that 250,000 people go missing in the UK every year.
For the friends and family of those people, the distress and uncertainty they must feel is almost unimaginable. Unfortunately, the mundane realities of life can quickly escalate to make the even situation worse. Bills need paying and property needs looking after.
If your loved one has gone missing, how can you keep their affairs in order, ready for the hoped-for day when they are found?
Under the current law, trying to do so is a process fraught with delays and expense.
When someone dies, their personal representatives (i.e. executors or administrators) will be granted the authority to deal with their property. However, when someone is missing, they must be gone for 7 years before they can be formally presumed dead. Until that time, it can be difficult to obtain the necessary authority to deal with the missing person’s property.
But this is due to change.
A new law – the Guardianship (Missing Persons) Act 2017
A new law has been very recently passed by Parliament. The Guardianship (Missing Persons) Act 2017 aims to make managing a missing person’s property easier for their family. It creates a new role: a ‘Guardian’ of the missing person’s financial and property affairs. Certain family members can apply to the Court to become a Guardian, which gives the authority to deal with the missing person’s property.
In many ways, Guardians are similar to Attorneys (under a Power of Attorney) or Deputies appointed by the Court of Protection. For more information on these roles, please see our Factsheets.
At the time of writing, the Act is not yet in force, and there is currently no date set for when it will be. Hopefully, however, this overview of the new law will help anyone who may need to use it when it does come into effect.
How do I become a Guardian for the Missing Person’s property?
As long as you have a ‘sufficient interest’ in the missing person’s property, you can apply to the Court of Protection to become a Guardian.
People with sufficient interest are defined as:
- The missing person themselves
- Their spouse or civil partner
- Their parent
- Their child
- Their sibling
- Their personal representatives (i.e. their executors or administrators)
You can apply to deal with all of the missing person’s property or just some specified parts of it. It will then be for the Court to decide the extent of your Guardianship powers, providing they grant your application.
When can an application be made?
There are a few requirements:
- The person must be ‘missing’ in the way the Act defines it.
To be considered missing, the person must be absent from their usual residence and from their usual daily activities.
In addition, it must be the case that either:
- Their whereabouts are not known precisely enough; or
- They are unable to make and/or communicate decisions about their financial affairs, for reasons beyond their control. However, injury, illness, or a lack of mental capacity will not count as valid ‘reasons beyond their control’.
- The person must have been missing for at least 90 days.
This requirement can be disregarded by the Court, however, if an urgent decision on the missing person’s property is needed.
What can I do as a Guardian?
Depending on the order the Court makes, you may be granted a number of powers to use on the missing person’s behalf. These include:
- Selling, letting or mortgaging property
- Making investments
- Recovering debts owed to the missing person
- Paying off the missing person’s debts
- Conducting legal proceedings
- Making gifts (subject to certain conditions)
- Receiving reimbursement from missing person’s property, for reasonable expenses incurred through the Guardian’s role.
However, the Act specifically states that, as a Guardian, you cannot:
- Make a Will on behalf of the missing person
- Use any trustee powers that the missing person might have over property held on trust for someone else
What must I do as a Guardian?
If you are appointed as a Guardian, you must fulfil certain responsibilities and duties. These are intended to protect the missing person. As a Guardian, you must:
- Act in the best interests of the missing person
- Consult people who the missing person would have been expected to consult before taking a decision
- Keep records and accounts concerning the use of your powers
- Make reports to the Office of the Public Guardian if required
- Comply with any other duties or conditions imposed on you by the Court
If you are ever unsure of your obligations as a Guardian, it is recommended that you seek legal advice before taking any action.
How long does a Guardianship last?
The standard term of a Guardianship is 4 years. If it is still required after that period, a further application must be made. However, there is no requirement that someone else must take over the Guardianship; if you are an outgoing Guardian, you are free to re-apply.
A Guardianship will also end if:
- The missing person dies or is formally presumed dead
- The Guardian dies
- The Court revokes the Guardianship
Can anyone else challenge my actions as a Guardian?
The Court has the power to override your actions as Guardian. It can also impose extra conditions, change the terms of your Guardianship, or even revoke it altogether. Ordinarily, such measures would only result from another party applying to the Court and asking it to do so.
The only parties that are able to make such applications are the Office of the Public Guardian and people with ‘sufficient interest’ (as detailed above).
Doing all you can to comply with your duties as a Guardian is the best way to to avoid or defend against any challenges. If you believe your actions may be challenged, your first step should be to obtain specialist legal advice.
The Act gives Guardians a number of powers and responsibilities. As such, the role could easily seem overwhelming to many people. If you are considering an application to become a missing person’s guardian, it is strongly recommended that you seek legal advice on the implications of doing so.
If you would like to discuss anything in this article, or you are in the unfortunate situation of needing the provisions of this new law, please do not hesitate to contact us.
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