Thousands of families remain in limbo as the implementation of a new law designed to help them manage affairs of missing loved ones is delayed.

The long-awaited Guardianship (Missing Persons) Act 2017, will allow relatives and close friends to manage the affairs of missing people, without having to obtain a declaration of presumed death. But secondary legislation is required before the Guardianship Act can come into force – something that was expected to take effect in April 2018, but which has now been pushed back.

The Ministry of Justice has indicated that the necessary rules of court will not be published until October 2018 at the earliest – and possibly not until April 2019.

Sarah Young is a Partner at Ridley & Hall where she advises relatives of missing people. She says the Act is urgently needed to help those who still have hope and reason to believe their loved ones are alive.

“We currently lack a legal mechanism for relatives to step in and look after a missing person’s property and finances while there is still hope they will return. As it stands, families must navigate the bureaucratic nightmare of financial institutions that are currently unable to legally recognise anyone who wants to manage a missing loved one’s affairs,” Sarah explains.

She adds: “The Ministry of Justice estimates that as many as 100 applications will be made each year under the new law. But until the Guardianship Act actually comes into force, family members have no other option than to apply for a declaration of presumed death, if they want to prevent a missing loved one’s property being repossessed or a bank account going into overdraft.”

According to figures obtained by Ridley & Hall through Freedom of Information, Police in England Wales recorded more than 99,000 missing people incidents in 2017. Although not all of the forces indicated how many of the missing were men and women, those that did showed that significantly more men went missing last year.

The Metropolitan Police Service recorded the highest number of missing people (21,412) followed by Greater Manchester Police (8,959), West Yorkshire Police (7,710) and Hampshire (6,260).

Sarah represents families of adults that have gone missing in the UK or abroad who have assets in England or Wales. Her experience backs up the latest figures: “Most of the cases I deal with involve men. Often they have gone missing when hiking, sometimes abroad. Other cases sadly involve suspected suicide or murder.”

Sarah adds: “The problems for families that have been left behind are significant; homes are repossessed and bank accounts run into overdraft because no one has the authority to act. It is hugely distressing for families for whom the hope of their loved one returning is real.”

The Guardianship Act would have been particularly helpful in a case involving a Huddersfield man, Steven Cooper who went missing on his 47^th birthday on 21 January 2008. His family remain convinced that Steven is alive. However his partner Claire Lodge owned a property jointly with Steven and was trapped in it; unable to sell or re mortgage it without a declaration of presumed death. The case ended up in a trial in front of a High Court judge in 2016 when an order was made against the family’s wishes.

Sarah says: “It is frustrating for those of us who celebrated the introduction of the Guardianship Act to now learn that it could be another six months or a year before we can begin using it to help people. We need the Guardianship Act enabled now, not another year later.”

Sarah has now written to the Lord Chancellor, David Gauke MP to ask him to prioritise implementing the Act. She is also contacting families of missing people that she has represented to ask them to share their stories with him.

She says: “The stress and anxiety of not knowing what has happened to their loved one is compounded by being unable to take any practical steps at all to manage their finances. This problem is particularly acute when a missing person owns property jointly; the left behind joint owner of a property cannot sell or re-mortgage, and is often left struggling to cope financially as a result.

Once the Guardianship Act does come into force, a person can apply to become the guardian of the estate after 90 days have passed. The court must be satisfied that the guardian is a suitable person to act in that role, and do not have any possible conflict of interest. The acts of the guardian will be overseen by the Public Guardian, who currently supervises attorneys and deputies who manage the affairs of individuals who lack mental capacity. A Guardianship Order can last for up to four years, after which time, the guardian can be reappointed by the Court.

Sussex Police and Wiltshire Constabulary have not yet responded to the request. South Wales Police declined to respond.

A missing person: Case study

 When 52-year old Gavin Rushton went missing in Ecuador, his sister faced a wall of red tape when she tried to stem the flow of money from his bank account to pay for bills that just kept coming.

A year later, Sarah Rushton, 55 from Enfield in London, says the new law designed to help families like hers manage the finances of a missing loved one is needed urgently.

Gavin was a keen and experienced traveller who went missing on 11 March 2017 while exploring San Cristóbal of the Galapagos. The hotel manager saw him leave his hotel that morning, but when he did not return, the Foreign Office was alerted and tracked down his sister.

Sarah says: “Gavin was a seasoned traveller – he worked so that he could travel, and had been all over the world. This time, we had been in regular email contact as always, and there was absolutely no reason to think he would want to disappear.”

The authorities carried out extensive land searches and fly-overs for several months, but there was no sign of Gavin. In the end, the search was called off.

“Of course, we had hope that Gavin would be found, but after a while, we had to do something to make sure his bills were paid. That, however, turned out to be a bureaucratic nightmare which is still rumbling on today.”

Sarah began phoning around to let banks, utility companies, internet providers, the DVLA and the council know that Gavin had gone missing. But she was met with a mixed bag of sympathy and cold refusal to help.

“Most of the companies wouldn’t deal with me, because I wasn’t the account holder. Some organisations were sympathetic and helpful, such as Thames Water and the council tax office. But others like the bank and Virgin media which provided his TV, phone and internet, said that I had failed the security checks and that taking action would be a breach of confidentiality. I had to write several formal complaints to get anywhere, and Virgin is still drawing money from my brother’s account. It is appalling and hugely upsetting.”

Gavin’s bank account finally fell into arrears, and the only thing Sarah could do, was to top it up with money from their elderly mother.

“We are now having to come to terms with the fact that Gavin might not ever be coming home. But while I am dealing with the loss of my brother, I still have to battle the red-tape of companies that hide behind red tape and profit from a gap in the law.”

Sarah and her family have now asked Ridley & Hall to help them obtain a declaration of presumed death for Gavin which means that they will finally be allowed to deal with his affairs.

 Background to Claudia’s Law

Claudia Lawrence was a 35-year old chef when she went missing in York in 2009 . She was believed to have been murdered but this was never proven. For her family, the trauma of her disappearance was compounded by the fact that they had no right to manage her financial affairs.

Claudia’s father, Peter Lawrence has since campaigned on behalf of the families of missing people.  On 27 April 2017, the Guardianship (Missing Persons) Act 2017 became law – allowing a guardian appointed by the court to manage the financial and legal affairs of a missing person.

The Guardianship Order will be revoked if the missing person reappears or when a Declaration of Presumed Death is made.

Anyone wanting to join Sarah in asking the Lord Chancellor, David Gauke MP to prioritise the introduction of the necessary rules of court, can email gauked@parliament.uk

Sarah Young – Partner

Sarah Young is a Partner with Ridley & Hall solicitors in Huddersfield. She specialises in will disputes and financial abuse.  She has a particular expertise in cases involving missing people, and supports the work being done by the charity Missing People.

The Freedom of Information Request below was made to all Police forces in England and Wales in January and February 2018.

1. How many adults were reported missing to your Police force in 2017?
2. Can you provide a breakdown of their age and gender?
3. How many of the adults reported missing to your Police force in 2017 had a mental health illness/flag attached to their record?