Update: Guardianship (Missing Persons) Act 2017 – The Law is Changing

Posted: 18th June 2019

According to Missing People, a charity that assists missing people and their families, 180,000 people are reported missing every year, 95,000 of which are adults. Although the majority of adults are located within the first 48 hours, an estimated 3,800 adults are missing for a week, or longer.

When an adult goes missing, there are practical issues which are left for the family to resolve, the main one being how the assets of the missing person are dealt with. The missing person may be a joint owner of a property, they may have a mortgage, they may have investments or be in receipt of benefits. They may have a savings account, have debts or simply have utilities to pay. Regardless of the extent of the assets, currently, a family member does not have the legal authority to deal with the finances or assets belonging to a missing person.

At present, the only way in which a missing person’s assets can be dealt with, is by the family obtaining a Declaration of Presumed Death from the Court. The family must be able to prove the person has been missing for at least 7 years, or that they have died in a natural disaster. Of course the most obvious drawback of this is the family must wait 7 years before they are able to do anything, thereby increasing an already unbearable situation.

It has been acknowledged that this is far from ideal and in July 2019, The Guardianship (Missing Persons) Act 2017 will be introduced. The Act will allow families to manage the finances and assets of their missing relative, by applying for a new Guardianship Order, provided the person has been missing for a minimum period of 90 days.

The Guardianship Order will be accepted and recognised by banks and other financial institutions, much to the relief of family members. An Order can last for up to 4 years and can be reapplied for when it expires. Of course there are many other important aspects of the Act such as restrictions and limitations within an Order itself, as well as the rights and power of Guardians.

The benefit of a Guardianship Order is that it allows the family to manage the affairs of the missing person whilst they are missing and may still return. This in turn will enable the dependants of the missing person to be cared for. A Declaration of Presumed Death instead allows the family to finalise the person’s assets, where return is most certainly unlikely.

In May 2019, EMG Solicitors made some enquiries and received this update from the Ministry of Justice:

“We are in the process of updating and revising the Code of Practice which we are also discussing with key stakeholders (including the Law Society, which has commented on the latest draft).

The rules of court and a new Practice Direction have been drafted, and considered by the Rule Committee, and once the statutory instrument has been signed off internally we will be able to send advance drafts out.

Overall, we are on course for July 2019 implementation, but there remains much to be done.”

How EMG Solicitors can help you

Once the Act is implemented, EMG Solicitors will be able to offer guidance and assist families who, understandably, may not be able to cope with a stressful Court process. If you are worried about the assets of a missing relative and would like further information on how to apply for a Guardianship Order, please contact us on 0191 500 6989 and we will be happy to help you.