It is a shocking fact that every year around 250,000 people are reported missing across the United Kingdom. A minority remain missing for weeks, months or years, leaving their families in an agonising limbo.
One of the most difficult challenges for families to face is the idea that they may never know what has happened to their relative – the emotional burden can be crippling. On top of this, often families also have to deal with the financial and legal problems that arise out of the disappearance. These problems can be particularly difficult if the family depends on the missing person financially or share assets or liabilities with them, such as a mortgage.
Declaration of Presumed Death
The Presumption of Death Act 2013 was passed in England and Wales on 27th March 2013 and came into force in October 2014. It creates a court procedure which can lead to the issue of a certificate of presumed death. The Act creates a legal framework to ensure that bereaved people can better deal with the property and affairs of a loved one who has gone missing and is presumed dead.
The specific issues that families face will be different in each case and much will depend on how long their relative has been missing for, the circumstances of the disappearance and any financial or legal connection they have to them.
You can download a useful guide that we have put together on this topic here
The Guardianship (Missing Persons) Act was passed in 2017 and came into force on 31 July 2019 More information about the Act is set out in a Code of Practice published by the Ministry of Justice. The charity Missing People also provides useful help and guidance. The Act applies in England & Wales, where the missing person or their spouse/civil partner (if they are making the application) should live.
Anyone considering applying to the High Court to become a guardian for a missing person should also consider as an alternative, whether an application for a declaration of presumed death would be appropriate. Many people still believe that such an application cannot be made until someone has been missing for 7 years, which is incorrect.
An application for guardianship can be made at any point after a missing person’s disappearance, but it is anticipated that in most cases 90 days will have passed beforehand.
The process for managing guardians will be similar to the existing system for deputies appointed to manage the affairs of persons lacking mental capacity, under the Mental Capacity Act 2005. The Guardianship Act is likely to mainly be used to help families who want to manage a missing relative’s finances – particularly in situations where a home is at risk of being repossessed or where, for example, young children require financial support.
You can download our free report on Guardianship here.
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