The Ministry of Justice has at last confirmed that the Guardianship (Missing Persons) Act 2017, known as ‘Claudia’s Law’ will come into effect on 31 July 2019. The Act will allow someone to manage a missing person’s affairs in the hope that they will one day return. It’s a law that will make a real difference to left behind families of missing adults in England & Wales as it will enable a guardian to be appointed, usually after 90 days have passed following a disappearance, to manage their loved one’s finances.

Solicitor Sarah Young specialises in cases involving missing people

How will this improve the existing powers to manage the financial affairs of missing people?

The new Act will be hugely helpful for families of individuals who have:

• gone missing relatively recently, where there are issues over, say, a property being repossessed or a bank account going into overdraft, and/or
• where a left behind family believes that their loved one is still alive or is divided over the issue.

The existing law is the Presumption of Death Act 2013 (PODA), which enables an application to be made to the High Court for a declaration that a missing person is presumed to have died. Without a declaration, the bizarre situation currently arises whereby no one has the legal authority or power to make decisions in relation to the missing person’s finances and property. That means that at what is often a desperately upsetting time for their family, a missing person’s house can get repossessed, their bank accounts go into overdraft, and no one in authority can help.

Claudia Lawrence is a chef who went missing in York 2009. Her father, Peter Lawrence has long campaigned for guardianship to prevent these kinds of problems arising, and so the new law is known as ‘Claudia’s Law’.

Although an application can be made at any point after someone has gone missing, the main problem with PODA is that it is rare for a family to be emotionally prepared to apply for a declaration of death very soon after a disappearance. There may also be hope that they are still alive. However, financial problems can present themselves very early on, so the fact that someone will soon be able to apply to be appointed as a guardian after 90 days have passed, will prevent many repossessions and give some sense of control to left behind families. It also offers a compromise solution in cases where family members have differing views about what may have happened or simply can’t face the finality of a declaration of presumed death.

How is an application made?

Applications for a guardian to be appointed will be made to the High Court, on the basis that it is assumed that the missing person is still alive.

One of the key points of the new Act is that a guardian has to act in the ‘best interests’ of the missing person. There is a helpful Code of Practice to support guardians in making decisions, such as re – mortgaging a property and making gifts. It will help families and friends consider whether guardianship is the best way forward and will give guardians confidence in making decisions on behalf of a missing person.

It’s envisaged that guardians will be appointed and supervised in a similar way to attorneys, who manage the affairs of someone who has lost mental capacity.

Summary

The new Act will hopefully reduce some of the stress and worry for left behind families and friends about financial and legal issues. If you are thinking about making an application to be appointed as a guardian – or have any concerns about someone else applying for the role, do get in touch on 0800 8 60 62 65.