Who manages someone's affairs when a person goes missing?

In July 2019, the Guardianship (Missing Persons) Act 2017 finally came into force. This act has been long-awaited for families with missing loved ones.

Birkett Long represented the claimant in the first claim of this kind in the Chancery Division of the High Court in late December 2019. This has allowed the family to enter into 2020 knowing that their loved one’s property and financial affairs can be managed.

What is the Guardianship (Missing Persons) Act and why is it needed? 

The Act, also known as ‘Claudia’s Law’, was born out of the tragic circumstances the father of Claudia Lawrence found himself in after his daughter went missing in 2009. Peter Lawrence OBE has been campaigning, alongside the charity Missing People and other affected families, for a change in the law since Claudia disappeared.

The Presumption of Death Act 2013 allowed families to take over the financial affairs of a missing person, but required them to declare a missing person dead. Without evidence, families cannot ask the court to pronounce them dead until they have been missing for a period of 7 years.

If a person goes missing before making a lasting power of attorney, then there is no one with legal authority to manage their affairs in their absence. This means that utilities and mortgage payments cannot be made. It can also lead to the missing person finding themselves in debt, or even bankrupt, upon their reappearance.

The new Act creates a new legal status of ‘guardian of the affairs of a missing person’.

Making a guardianship application for a missing person

Guardianship applications are made via the High Court. Once they are appointed, guardians are supervised by the Office of the Public Guardian. This Act enables the court to appoint a guardian for someone who has been declared missing for 90 days or longer to deal with their affairs. This is for a specified period, not exceeding four years. The court can appoint more, if appropriate. This will allow the guardian to:

• access accounts with banks or building societies
• authorise mortgage and insurance payments
• sell or rent a property on behalf of the missing person
• make investments
• pay for any dependents of the missing person
• suspend direct debits to utility providers

A guardian can be any individual aged over 18 who is considered suitable to act and will act in the missing person’s best interests. Amongst other things, the court will have regard to:

• the proposed guardian’s relationship to the missing person
• their knowledge and skills
• the views the missing person has as to the proposed guardian (if these can be ascertained), and
• any potential conflict between the guardian’s interests and those of the missing person.

The court can only appoint a guardian to act for a period of up to 4 years, but this can be extended if necessary.

It is hoped that such guardianship order applications will be rare. However, it is reassuring to families and friends that their missing loved one’s affairs are well maintained for when they hopefully return.

Lisa Cox is a solicitor in Birkett Long’s Court of Protection & Inheritance Disputes team. If you have any questions about this article, a will dispute or a Court of Protection application, please contact Lisa on 01206 217307 or [email protected].