When someone goes missing, they often leave behind all their responsibilities. This can include children, pets and dependents, but also property, finances and debts.
In some circumstances, these responsibilities will fall to people who already have the legal authority to manage them. For example, if the property, bank accounts and debts were jointly owned with a spouse or partner, that spouse or partner will be able to step in. However, sometimes there will be no one who automatically has the right to take over. This can be an incredibly challenging factor to deal with in what is already a very difficult situation.
The Guardianship Act 2017 set out to change this. This legislation, also known as ‘Claudia’s Law’, was championed by the family of missing York resident Claudia Lawrence. Because of this legislation, the loved ones of a missing person can now apply for a guardianship order, which can give them the right to manage property and financial concerns on the missing person’s behalf.
How do you become a guardian?
In order to be appointed as a guardian for a missing person, you will have to make an application to the High Court. It is possible to submit an application yourself, but you may wish to work with a solicitor specialising in missing persons law to give yourself the best possible chance of success.
The missing person will usually need to have been gone for at least ninety days before a guardianship application can be made. In some exceptional cases you may be able to apply earlier than this, but you would need to have a convincing reason why there was an urgent need for this.
Not everyone will have the right to act as a guardian. You will need to be over the age of 18 and able to demonstrate your ability to act on the missing person’s behalf. The court will also need to be convinced that you have sufficient interest in the missing person’s affairs. The court will usually seek to appoint the closest suitable individual to the person who has gone missing, such as a spouse, a civil partner, a parent, a sibling or a child. If there are no suitable close relatives, the court will consider more distant relatives or other interested parties (such as unmarried partners, close friends or business associates).
What responsibilities will you have?
The exact responsibilities you would have as a guardian would depend on what the High Court decides. Each guardianship order is different, and the court will consider the circumstances of the case and what duties they believe the guardian will need to carry out in the best interests of the missing person.
In most situations, guardians will be able to:
- Manage and invest the missing person’s money.
- Pay any outstanding bills and close accounts.
- Ensure rent and mortgage payments are up to date.
- Look after and maintain the missing person’s home.
- Re-mortgage, sell or rent out the missing person’s home.
- Collect in debts owed to the missing person.
- Manage legal proceedings on the missing person’s behalf.
- Sign certain documents on the missing person’s behalf.
Some guardians may also be given the right to make financial gifts to loves ones on behalf of the missing person. In some circumstances, you may need to apply to the court for the permission to make a big decision on behalf of the missing person.
It’s important to note that as a guardian you will only have the right to carry out the actions as specified on the guardianship order you have been awarded. Guardians never have the right to make a Will or take over trustee responsibilities on behalf of the missing person they are acting for.
How long can you act for?
When a guardianship order is awarded, it will state how long it is valid for. This can vary, but is often for a period of three years. If the person the guardian is acting on behalf of is still missing after this time, it will usually be possible to apply to renew the guardianship order.
You will no longer be able to act as a guardian for a missing person if they come back. A guardianship order will also be automatically cancelled if a Presumption of Death is granted for the missing person. It is also possible for a guardian to be relieved of their duties if the court believes they are not doing the job properly.
Is there support available?
Acting as a guardian on behalf of a loved one can be difficult and stressful. In addition to managing the day to day responsibilities and ensuring all decisions are taken in the best interests of the missing person, a guardian will also need to keep careful records and accounts.
Many guardians choose to work with a specialist solicitor to ensure they are carrying out all their responsibilities in accordance with the law. This can help to make the process a lot less daunting for the guardian, and will also make sure the missing person’s interests are being met as well as possible.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:
- Trusts and Estate Planning
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
Need further help?
If you would like to discuss these issues further, please contact us.