Footprints, Flickr, under creative comms, Susan Sermoneta

Footprints, Flickr, under creative comms, Susan Sermoneta

The government is proposing an overhaul of the law to bring clarity to the family of loved ones who have gone missing. The Ministry of Justice yesterday began a consultation on guardianship of the property and affairs of missing people.

The current position is that a person is presumed alive until the contrary is proven which mean that the ownership of property and assets are left in limbo and financial affairs go unmanaged. The charity Missing People argues that there is ‘compelling evidence to demonstrate that provisions need to be put in place to protect the affairs both of missing people and those they leave behind.’ The main idea behind the proposals is to protect the interests of the missing person by creating a guardianship power. Primary legislation would be required to do this.

The role of guardian would deemed legally binding, as though they were the missing person. The guardian would be required to act in the best interests of the missing person and consequently held to a high standard with respect to their conduct.

You can read the consultation here

Proposals include:

  1. That the appointment will be made by the court on application by an interested person after an absence of at least 90 days;
  2. The appointment will confer authority on the guardian to act for the missing person in relation to his or her property and affairs, subject to any limits imposed by the court.
  3. The guardian will have to act in the best interests of the missing person;
  4. The appointment will be for a period of up to four years with the possibility of extension for a further four;
  5. The guardian will be required to account for his or her actions to a supervisory body; and
  6. If the guardian becomes aware, directly or otherwise, that the missing person is alive or dead, he/she must inform the court and apply to have the guardianship terminated.

The charity Missing People has been campaigning for a change in the law for years. Based on the number of people who go missing in England and Wales together with indications from other jurisdictions, the group reckons that there could be between 50 and 300 appointments annually.We welcome the government’s consultation on introducing it as a great step forward,’ commented Susannah Drury, director of policy and advocacy. ‘We hope that the outcome of the consultation will be positive and that missing people and their families will finally have access to the legal support they need.’

Missing People had previously made the case for a Presumption of Death Act which will allow for ‘presumption of death’ certificates (equivalent to death certificates) from October (see here). They can be applied for by relatives of people who have gone missing and are presumed to have died to enable their families to resolve their affairs. Guardianship orders on the other hand would enable families to manage and maintain a missing loved one’s practical affairs in case of their return. 

The group was advised by the City law firm Clifford Chance.

Patricia Barratt, director at Clifford Chance, argued that the guardianship role addressed a ‘current deficiency in UK law’. She said that the evidence from other jurisdictions ‘suggests that this type of legal role, to deal with the affairs of a missing person, can be of great practical assistance, both to the families of missing people, and to financial institutions, and can also help to safeguard the interests of the missing person’.

Author: Caislin Boyle

Caislin has completed the BPTC at the University of Law London and is currently seeking pupillage

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