The Presumption of Death Act, which received royal assent in May 2013, put in place the legal framework to enable families of someone who has gone missing to obtain a certificate of presumed death.  That certificate will help families deal with the many legal and financial issues that arise when a person is missing and will be equivalent to a death certificate.  It replaces the current patchwork of legal provisions that can be a very difficult minefield for families to navigate and will come into force in April 2014.

The Act has one major defect however – identified by the Chief Executive of charity Missing People, Jo Youle;

“The absence of “guardianship” provisions means that families currently face a huge ordeal in managing their missing loved one’s affairs.  Ongoing direct debits can drain a missing person’s bank account, some families are forced to pay both halves of a joint mortgage and some families risk losing their homes.”

In response, the government has put forward a proposal to create a new power of guardianship.  The proposals would allow a guardian to be appointed who can manage the missing person’s property and affairs. If they are implemented as planned in April 2014, these provisions will make a significant difference to the families of missing people in the months and sometimes years after someone has gone missing. At present they have no way to make alternative arrangements until their loved one can be presumed dead.

Jo Youle added:

“We look forward to working with families and other partners following this very positive announcement to help ensure the most efficient system for families facing significant practical and financial challenges alongside the distress of a disappearance.”

There is some concern amongst legal practitioners that the procedures under the new Act will be more expensive than at present as a hearing will be required in front of a High Court Judge.  Sarah Young, Partner at Ridley & Hall solicitors in Huddersfield, comments:

“Over the last year I have obtained four ‘leave to swear death’ orders for the families of people that have gone missing.  It’s not always a straightforward process but it does have the advantage that the case is dealt with on the papers alone; no court hearing is required. Once the new Act is in force, in April 2014, the costs of obtaining a certificate will probably increase substantially because a court hearing will be required.  So I would urge families of someone who has gone missing – if they are as sure as they can be that they are not going to return – to apply for a ‘leave to swear death’ order under the current provisions before April 2014.”

She adds:

“Having dealt with a number of cases involving missing people I think that the guardianship proposals will be incredibly important.  It can be very difficult emotionally for families to seek an order confirming that their loved one has died; it can feel like giving up on them. Guardianship powers offer a ‘halfway house’ and will help to protect the assets of missing people.”

Sarah Young is a Partner with Ridley & Hall solicitors. She specialises in inheritance disputes and contentious probate. Sarah has a Masters degree in personal injury law and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley & Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421 or mobile 07860 165850.