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Guardianship Missing Persons Act: guardian of the affairs
Whether it be a partner, family member or close friend is always a distressing time for everyone when a loved one goes missing.
This difficult time can be exacerbated further if they have a home and finances that need to be managed to ensure that both the missing person and those they care for do not suffer any detriment.
Thanks to Birkett Long’s experience, we can advise you on your best course of action and assist in making an application for someone to be appointed to manage the missing persons’ affairs until they return home. Call us on 01206 217 307 or fill out this form and we will get in touch.
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’.
Who can be appointed as a Guardian?
The court will only appoint a Guardian where it is satisfied that doing so is in the missing person’s best interests.
A guardian can be any individual aged over 18 who has sufficient interest in the missing person’s affairs. The person must be considered suitable to act and must satisfy the court that they 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.
Who has sufficient interest?
Under the Act, missing person’s personal representatives, spouse, civil partner, parent, child or sibling are all considered by virtue of their relationship with the missing person to have sufficient interest. Any other proposed guardian must satisfy the court as to their interest.
Can there be two Guardians appointed?
The court may appoint two or more guardians in respect of some or all of a missing person’s property and financial affairs. It can appoint them to act at the same time or at different times.
When can I apply to be a Guardian?
The court can appoint a guardian for someone who has been declared missing for 90 days. However, you can apply earlier if the matter is urgent, for example if the missing person’s house is being repossessed.
How long can I be a Guardian for?
The court can only appoint a guardian to act for a period of up to 4 years, but this can be extended if necessary.
What is my role as a Guardian?
The court will vary the order appointing a Guardian to suit the missing person’s needs, but such powers can include the authority for 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
provide maintenance for dependents
pay for any dependents of the missing person
suspend direct debits to utility providers
How do I know if someone has applied to be a Guardian?
Within 14 days of the application for a Guardian to be appointed being issued the applicant must notify the spouse or civil partner, child, parent and any siblings of the missing person of their application. An advertisement must also be placed in at least one public news media in the vicinity of the last known usual place of residence.
Can I object to an application for a Guardian to be appointed?
Yes. The missing persons’ spouse or civil partner, child, parent or sibling can “intervene” in the application. Any other person must obtain the court’s permission to intervene.