Tuesday 13 November 2012

A significant legal milestone for families of missing people passed quietly on 2nd November. A Private Members’ Bill on the presumption of death passed its first reading in the House of Commons on 2nd November. The Bill is a huge step forward for the grieving relatives of those who go missing; but it is a missed opportunity as well.

An astounding 250,000 people go missing every year in the UK.  Thankfully most disappearances are resolved relatively quickly, but more than 2000 people remain unaccounted for, for longer than 12 months.  The Missing Persons Bureau database currently contains details of some 6,000 missing persons who have not been seen for more than a year.

The charity, Missing People, which campaigns on behalf of families of missing people, produced a research report in 2008 called “Living in Limbo” which sets out the range of impacts faced by families left behind when someone goes missing including emotional, social, financial and legal issues and the effects of dealing with different agencies.

If someone disappears, no one has the right to take any action on their behalf to protect their affairs. As soon as a family member tries, they come up against a wall of bureaucracy:

“… having to deal with things like … insurance companies for [his] motorbike and they’d be “sorry, we need it in writing”.  “Well I would love you to have it in writing but my son is missing”.  “Well sorry, unless [he] writes to us …”  “Are you stupid?!” “You know it would end up with me just completely losing it.  His bank was going overdrawn and I know it sounds so petty in the great scheme of what’s happened, but I didn’t want my son’s account to go overdrawn.  It mattered so much to me”.

(Mother of a missing man)

You might think that if a missing person made a power of attorney that might help, but it doesn’t.  In a case dealt with recently by contentious probate specialist Sarah Young, matters got complicated:-

“The man who went missing had been very organised. He had executed a power of attorney and had a valid Will.  But when he disappeared his attorney was unable to act because you can only use a Power of Attorney if you know that the person is still alive and of course that was unclear.  Equally well, the executor of his Will could not take any action either because you can only admit a Will to probate if you are sure that the person has died and have a death certificate.  So in the case of a disappearance, the legal status of a missing person is in limbo”.

Families report many challenges when they attempt to look after their missing loved ones’ affairs – from banking, mortgages and insurance to drawing benefit payments and dealing with utilities.  If a missing person has joint assets or liabilities with someone else, or someone was financially dependent on them, these problems can be enormously stressful.

The Private Members’ Bill brought by John Glen MP had its first reading in the House of Commons on Friday 2nd November.  The Bill proposes a presumption of death law similar to the law that exists in Northern Ireland and Scotland.  The aim of the legislation is to simplify and to bring into one place a “crazy paving” of statutory provision that currently govern the legal process that families have to negotiate in order to obtain an order that a missing person is presumed dead.

There is a popular misconception that a family must wait 7 years before being able to take action.

In general at the moment a person may be presumed to be dead if it can be proved that: –

• There is no acceptable evidence that the missing person has been alive at some time during a continuous period of 7 years or more.

• That there are others likely to have heard of the missing person had he been alive who have not in fact heard of the missing person during that period.

• That all due enquiries have been made with a view to locating the missing person without success.

But this is not a fixed time limit – in some circumstances a person may be presumed to be dead after a shorter period as was for, example, the case following the tsunami in South East Asia in December 2004.  The Department of Constitutional Affairs (as it was then known) announced that families of people missing as a result of the disaster would be able to obtain probate without having to wait 7 years if they were able to show evidence that the person was in the region at the time.

Generally when a person dies their death certificate can be used to obtain a grant of probate (where there is a Will) or a grant of letters of administration (where there is no Will and so the person died intestate).  These grants enable the executors or administrators to deal with the deceased’s estate.  Where a person has disappeared and their body has not been found, an application must be made to court for leave to swear the death as well as for a grant of probate or letters of administration.  The procedure is governed by section 53 of the Non Contentious Probate Rules 1987.

The Presumption of Death Bill will, if it becomes law, make it much easier and more straightforward for a family member to seek a declaration from the High Court that a missing person is deemed to have died.  It would establish a new register of presumed death which would be maintained by the Registrar General and the court would have wide powers to deal with complicated issues that arise in relation to a missing person’s financial affairs.  It is estimated that there would be approximately some 30–40 declarations sought in England and Wales every year.

But, although this Bill is much needed, arguably it ignores a far greater and more pressing problem.  Peter Lawrence, father of the missing chef Claudia Lawrence, spoke eloquently at an All Party Parliamentary Group meeting at the House of Commons on the 23rd October about the pressing need for guardianship legislation.  The charity Missing People is calling for a guardianship mechanism as part of their campaign.

Guardianship law would enable families to manage and maintain a missing loved one’s practical affairs in case of a return, whereas presumption of death allows them to resolve them.  Missing People have proposed that after someone has been missing for 3 months it should be possible for a loved one to obtain an order to enable practical financial matters to be dealt with, eg to stop direct debits.

For families having to deal with bureaucracy in the aftermath of a disappearance can be traumatic: –

“The finances are an added stress that you don’t need at the time really … we were, at the time, in a fixed rate mortgage but that stopped a few months after he went missing.  I tried to see if we could get a mortgage holiday or change the product but I wasn’t able to because I needed two signatures.  I have reverted back to the normal standard interest rate and in the last couple of years it has just seemed to soar”.

(wife of a missing man)

If guardianship legislation were to be enacted it is anticipated that there would be about 2,000 applications per annum.  There is no equivalent legislation elsewhere that can be replicated and because a greater number of applications would be likely to be made than under a presumption of death law, it is important that consultation takes place.  The Law Commission would be the obvious forum to consider the proposals but the government has not made a formal referral.  The Law Commission has a full programme and even if a referral were to be made to them, they would not be able to look at the proposals for some time.  The Ministry of Justice could start a consultation now but there is no indication from the government that there is an appetite to take up this issue.

There will be many circumstances where a family is not ready to accept, or simply does not believe, that a missing person is dead. Guardianship legislation is an obvious next step.

If the Presumption of Death Bill becomes law, it will be a significant achievement for the individuals and organisations that have campaigned for this change, of whom Missing People have been at the forefront. But there is still a lot more work to be done.  No one who has had involvement with families of those who have disappeared can fail to be touched by their plight and it is vital that the campaign work continues.

For further information please contact Sarah Young of Ridley & Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421 or mobile 07860165850.