The Guardianship (Missing Persons) Act 2017

The National Crime Agency's missing persons data report dated 1st July 2019 confirms that in the year 2016/17 there were over 387,000 calls recorded by the police in England and Wales in relation to missing people. Although the vast majority of people reported missing are found there remain over 5,500 unresolved cases.

When a person is missing their family suffer not only the acute distress of absence but also the practical consequences. When an individual in England and Wales disappears the law assumes them to be alive unless it is proved otherwise. This leaves their property effectively without an owner.

The Presumption of Death Act 2013 allows the High Court to make an order declaring a missing person dead for all legal purposes if it is satisfied they have died or have not been known to be alive for a period of at least 7 years.

This requirement for a period of 7 years to pass has caused the families of the missing great hardship which The Guardianship (Missing Persons) Act 2017 seeks to address. The Act came into force on 31st July 2019. It provides a legal framework for a missing persons financial affairs to be dealt with by someone else if the person has been missing for 90 days or more but has not been declared dead. Under the Act those left behind may now seek to secure the appointment of a trusted person to use and look after the property and financial affairs of the missing person. This trusted person is called a Guardian.

The Guardian's role is to deal with the practical financial and property related difficulties caused by the disappearance. For example, selling, letting or mortgaging the missing person's property, paying debts, receiving monies owing to them etc. In practice this allows for pressing issues e.g. paying a mortgage to ensure the missing persons home is not repossessed, to be addressed.

Applications for a Guardianship Order can be made to the High Court either the Chancery or Family Divisions. The Civil Procedure Rules (Part 57) apply and the application should therefore be started using a claim form and be supported by a witness statement.

Once made the Guardianship Order will be registered by the Office of the Public Guardian (OPG) and the Guardian will be subject to supervision by the OPG. The OPG's role is to ensure the Guardian acts in the best interests of the missing person. The Ministry of Justice published a detailed Code of Practice in June 2019 which can be found here.

Our Dispute Resolution lawyers have a wealth of experience and are here to assist with your legal problem. For further advice or help regarding the Guardianship (Missing Persons Act) 2017 please contact partner of the firm and head of our Litigation and Dispute Resolution department, Chris Fielding.