The Guardianship (Missing Persons) Act 2017 (the Act) came into force on 31st July 2019. The Act aims to help families of missing adults in England & Wales to manage their money and property, in the hope that they will one day return home. 

Nearly six years on, has it worked? 

• The Problem: Financial Struggles for Families of Missing People
• Claudia’s Law: How Does It Work?
• Guardianship in Practice: Why So Few Applications?
• Why is guardianship legislation not being used? 
• The Future of Guardianship: What Needs to Change?

The Problem: Financial Struggles for Families of Missing People

When someone goes missing for an extended period, it is often a traumatic time for their loved ones. There is, of course, the emotional distress of not knowing what has happened to the missing person. This may be compounded by the practical problems that can arise including: 

• A loss of financial support for family members 

• Unpaid bills  

• Bank accounts; a lack of information especially if accounts are online only/an inability to cancel direct debits  

• Mortgages; not just difficulty in meeting monthly payments but also being unable to remortgage/sell a property  

Claudia’s Law: How Does It Work?

Before the Act came into force, no one had the legal authority to do anything to protect a missing person’s finances if they were believed to still be alive. The only option for families was to apply for a declaration of presumed death under the Presumption of Death Act 2013.  This gap in the law meant that many families suffered financial stress and frustration. The late Peter Lawrence, a retired solicitor, campaigned tirelessly for guardianship legislation. As result largely of his efforts, supported by the charity Missing People, the Act was named “Claudia’s Law” in honour of Peter’s daughter, Claudia Lawrence who went missing in York in 2009.  

Guardianship in Practice: Why So Few Applications?

It is difficult to know how many individuals are long term (ie more than 12 months) missing in England & Wales, but it is generally thought that over 5000 children and adults fall into this category. Not all of the adults will have money or property that needs to be managed. Before the Act was passed, it was thought that around 250 families a year might benefit from it. However there has been a startling lack of reported cases; in fact, there are none that I am aware of until the recent publication of Bartram v Bartram [2024]. Not all cases are reported (and therefore publicly available) and that will often be because the circumstances are such that privacy is preferable.  

The charity Missing People believes that 13 orders have been granted since the Act came into force. So, the legislation is not being used as much as it was thought it would be. 

Why is guardianship legislation not being used? 

As a solicitor specialising in missing person cases, I am often asked by families for advice on guardianship. Nine times out of ten I counsel against an application under the Act. I have only made one application which was granted last year, appointing a mother and sister of a missing person jointly as guardians.  The reason is very practical; both an application for a guardianship order and an application for a declaration of presumed death must be made to the High Court. Both will require at least one and usually two court hearings. There is extremely detailed court guidance and rules that must be followed in both types of cases.  

Theoretically it is possible for someone to make an application without a solicitor, i.e as a litigant in person. This was the position in the Bartram case, but the reality is that it is extremely hard for non-lawyers to comply with the technical requirements. If a solicitor is instructed, the cost of an application for a declaration of presumed death – payable from the estate of the missing person – is around £10,000 to £12,000, including vat and expenses (court fees, barrister’s fees, an advertisement fee). The cost of a guardianship application will generally be at least the same or higher. In addition, there are court-imposed limitations placed on a person appointed as a guardian. They are responsible for safeguarding the missing person’s finances and property and this can be a heavy – and usually unpaid – responsibility. The appointment as a guardian is for a maximum of 4 years. It can be extended, but a fresh court application is necessary.   

If the missing person does not return then at some point, the family must still apply for a declaration of presumed death; despite the common misconception, there is no automatic presumption of death after 7 years.  

Therefore, unless a family is sure that their missing loved one is alive or cannot accept the possibility of their death, my advice is nearly always to simply make an application for a declaration of presumed death. Otherwise, it is highly likely that unless their loved one returns, they will incur the stress and expense of 2 sets of court proceedings rather than one. If a declaration of presumed death is made, the finances of the missing person pass in accordance with their will or under the intestacy rules. If the missing person does return then the declaration can be revoked although of course, the financial position cannot be as easily resolved, and any marriage is irrevocably ended by a declaration. 

The Future of Guardianship: What Needs to Change?

Unless guardianship becomes cheaper and easier, it is unlikely to be an option for many families. 

The guardianship legislation certainly meets what had been an unmet legal need. But in practice, the expense and stress of High Court proceedings means that it is only in exceptional cases that it makes practical sense for an application to be appointed as a guardian for a missing person. It remains the position that in most cases, if a court order is needed to resolve difficult financial issues arising from a disappearance, then the best route at present, unfortunately, is an application for a declaration of presumed death under the Presumption of Death Act 2013. 

Sarah Young – Director & Solicitor