From July 2019, The Guardianship (Missing Persons) Act 2017 will be introduced whereby grieving families of missing relatives will have the legal authority to deal with their finances and assets.
The Guardianship (Missing Persons) Act 2017 gained royal assent 2 years ago but has been gathering dust in parliament, waiting for approval. The Act would present families of missing people with access to their finances and affairs without being forced into testifying the presumed death of their loved one.
According to Missing People, a charity that assists missing people and their families, grief-stricken relatives are more often than not having to deal with a lot of additional paperwork in an already unbearable situation and could even be faced with financial hardship if they are unable to take control of the missing person’s finances.
When someone goes missing, the main practical issue that needs to be dealt with by families is how the assets of the missing person are to be allocated. This missing person may have many accounts, debts, mortgage(s) and utilities to pay for. Regardless of whether the estate is a considerable size or not, currently, a family member does not have the legal authority to deal with the assets belonging to the missing person.
At the moment, if a family member wanted to get access to the missing persons’ finances they would have to obtain a Declaration of Presumed Death from the Court and present evidence that the person has been missing for seven years – or they have passed away in a natural disaster.
The agonizing drawback of this is that the family would have to wait seven years before they could do anything which could result in destitution for those loved ones left behind.
According to Missing People charity, 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.
Consequently, in July this year, the law is changing and The Guardianship (Missing Persons) Act 2017 will commence. The new Act will mean that families will be able to manage the finances and assets of the missing relative by applying for a new Guardianship Order, once the person has been missing for at least 90 days.
The Guardianship Order itself will last up to 4 years and can be reapplied for when it expires and family members will be relieved to learn that the Order will be recognised by banks and other financial organisations.
This Order will go some way in easing the grief and comforting families knowing they can deal with the practical affairs of managing the missing persons’ finances and assets whilst they are missing but still a chance that they may be found alive – and allows the missing person’s dependants to be financially looked after and cared for by the extended family.
A Declaration of Presumed Death allows families to finalise the assets of those missing persons who are unlikely to return.
The Ministry of Justice recently updated on the upcoming introduction of the new Act:
“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.”
As a Family Law professional, how important is the introduction of the Guardianship Act to grieving families on a practical level?
