Missing Persons Law

The Guardianship (Missing Persons) Act 2017 came into full force on 31 July 2019. It’s often referred to as ‘Claudia’s Law’, as the family of missing York resident Claudia Lawrence are among those who have campaigned to bring this new law into force.  This law makes it possible to apply for a court order to be appointed as guardian over a missing person’s money and estate. Applications can be accepted once an individual has been missing for at least ninety days.

When a guardian is appointed, they’ll be responsible for making decisions in the best interests of the missing person. They may therefore be able to take actions such as:

When an individual has been missing for seven years or more, it’s possible to apply for a Declaration of Presumed Death. It may also be possible to apply for this document in cases where an individual has been missing for less than seven years but there’s clear evidence to suggest that they’ve died. These applications are made to the High Court under the Presumption of Death Act 2013.

The granting of the Declaration of Presumed Death will also start the process of allowing a Grant of Administration to be obtained. This means that you will be able to deal with the estate of the missing person, either in accordance with their Will if they left one, or with the Intestacy Rules if they did not. There are also some very practical benefits of applying for a Declaration of Presumed Death. This document enables the dissolution of the missing person’s marriage or civil partnership.

In most cases, applications for Declarations of Presumed Death are made by the following:

The court usually look most favourably on guardianship applications made by spouses, parents, siblings or grown-up children of the missing person.

However, in some circumstances there isn’t anyone who fits this criteria. In these cases, the court will consider appointing someone who has a clear interest in the missing person’s affairs, such as an unmarried partner, a distant family member, a business partner, or someone who had been appointed as an executor. The court will consider:

• The proposed guardian’s relationship with the missing person.
• What the proposed guardian’s opinions are of the missing person, whether they would likely act in their best interest and whether there would be any conflict of interest.
• Whether the proposed guardian has the skills and ability to act as a guardian.

If there isn’t a suitable individual, the court may consider appointing a professional guardian such as a solicitor.

If there is more than one person who wishes to be appointed as a guardian for a missing person, the court will decide who they think is most appropriate. All individuals will need to submit an application for the court to consider. A solicitor with experience in missing persons law will be able to advise you on whether your application is likely to be successful.

The exact rights a guardian has will depend on what has been specified in the guardianship order issued by the court. However, a guardian for a missing person will usually have the legal right to act in a similar way to someone who has been appointed as an attorney until a finance and property power of attorney. They will be able to do things such as:

• Manage mortgage and/or rent payments.
• Make decisions about selling or re-mortgaging property.
• Administer bills and outgoings.
• Manage bank accounts and invest money as appropriate.
• Recover any debts that were due to the missing person.
• Take over any ongoing legal proceedings on the missing person’s behalf.
• Give gifts to the missing person’s loved ones to mark significant life events.

Guardians can be appointed for a maximum period of four years. This can usually be extended if necessary. A guardianship order can also be brought to an end sooner in certain circumstances, for example if the missing person returns, if the missing person is declared dead, or if the person who has been appointed as guardian is no longer able to act.

A person’s estate cannot be administered until they have died or have been legally declared presumed dead. Therefore, the estate of a missing person cannot be administered as per their Will or the intestacy rules unless a Declaration of Presumed Death has been granted.

There is not currently any legal mechanism for making a Will on behalf of a missing person. If a Declaration of Presumed Death is granted for a missing person who had not made a Will, their estate will need to be distributed as per the intestacy laws. If you have concerns about this, we’d recommend seeking specialist legal advice.

Making the decision to apply for a Declaration of Presumed Death for a missing person is a very personal thing. Some people might be ready to make an application as soon as they become legally able to do so, for others it might not feel like the right thing to do for many years.

In some cases, applying for a Declaration of Presumed Death might allow the loved ones of the missing person to move on. Once this document has been issued, it would be possible for the missing person’s estate to be administered and for the missing person’s loved ones to claim any life insurance pay out that might be due. It would also give the spouse or civil partner of the missing person the legal right to remarry or enter a new civil partnership.

There is no legal requirement to apply for a Declaration of Presumed Death if you do not feel that it’s the right thing to do. There is also no cut off point: you can decide to apply at any point, even if many more than seven years have elapsed since the person went missing.

There are situations where it might be appropriate to apply for a Declaration of Presumed Death before a period of seven years have elapsed. This happens when there is clear evidence that the person has died, for example if they went missing during a natural disaster.

If you apply for a Declaration of Presumed Death under these circumstances, you will need to provide evidence with your application. A solicitor who specialises in missing persons law will be able to help you put this evidence together, but usually it will consist of things like police reports, witness statements and financial records. If the missing person left a suicide note, this would be considered strong evidence that they have died.

If a missing person is found alive, or if evidence comes to light that suggests they may still be living, an application can be made to the High Court to change or cancel a Declaration of Presumed Death.

However, even if a Declaration of Presumed Death is cancelled, it will not reinstate the marriage or civil partnership of the missing person. Depending on the original wording of the declaration, it is also unlikely to mean that any assets that were administered as part of the missing person’s estate would be automatically recalled. For example, if property belonging to the missing person had been sold in good faith, the sale could not be reversed.

If a life insurance policy had paid out as a result of the Declaration of Presumed Death and it later turns out that the person is not dead, the life insurance may need to be repaid. The High Court often requires that an insurance policy is taken out at the time of a Declaration of Presumed Death being granted to protect against the financial implications of this.