Earlier this year 27 April 2017 the Guardianship (Missing Persons) Act 2017 received a Royal Assent, creating a legal system to deal with the Property and Financial Affairs of people that are missing.
A Guardianship Order for a missing person is envisaged to work in a similar fashion to a Deputyship Order from the Court of Protection under the Mental Capacity Act 2005, in which a person can be appointed by the Court to manage the financial property and affairs for a mentally incapacitated person in their best interests.
Until now there has been no legal mechanism for a missing person’s property and affairs to be managed. This can undoubtedly cause problems, for the missing person should they be found and in the meantime additional distress for their loved ones. Without someone authorised to manage or protect the property and financial assets of a missing person existing assets will be dissipated, for example direct debits and standing orders from a bank account will continue to be paid with no ability to cancel them; assets could depreciate through a lack of maintenance and repair or failure to meet mortgage or loan repayments; dependants who are financially reliant on the missing person could be left in a financial detriment and effective running of the missing person’s business would not be possible causing further problems for customers, clients and employees.
The new Act makes provision for the Court to appoint a suitable guardian for that missing person to preserve, protect and manage their assets. This must be done in the best interests of the missing person, similar to a Deputyship Order in the Court of Protection. Such guardian will be able to support dependants, make financial decisions and act on them.
The Presumption of Death Act 2013 came into force on 1st October 2014 which makes provision for the Court to declare that a person who is thought to have died, or has not been known to be alive for a period of at least seven years, is presumed to be dead. Once a person has been declared dead their estate can then be administered under the terms of their Will or the Intestacy Rules. This new Act bridges the gap for that seven year period.
Any decisions made under the Guardianship Order will need to take into account any relevant wishes and feelings expressed by the missing person at any time, including any written statement that they have made; the beliefs and values that would be likely to influence the missing person and any other factors that the missing person would likely to consider. The guardian must also take into account the views of any persons who have a relevant interest in relation to the missing person’s property and affairs.
Once in force, this new provision is undoubtedly going to be helpful to families who are already experiencing extreme stress. These provisions have come to be known as “Claudia’s Law” in reference to Claudia Lawrence who went missing in 2009.
It is anticipated that between 50 and 100 applications a year will be made for a Guardianship Order, although there is likely to be an influx covering existing cases when the provision is in force.
When the Act comes into force, which is anticipated to be within the next 12 months, our Court of Protection Team will be ideally placed to deal with the application and implementation of Guardianship Orders. Our team of experts already manages the affairs of a large number of vulnerable clients, and will continue to do so long in to the future.