Even in today’s society of CCTV and other surveillance methods, reported incidents of missing persons in England and Wales are increasing. On 31st July 2019 the Guardianship (Missing Persons) Act 2017 (“the 2017 Act”) came into force. This is also known as Claudia’s Law after Claudia Lawrence who disappeared on 18th March 2009.
Claudia’s father Peter has campaigned for changes to the law to assist family members and loved ones of missing persons, so that they can take guardianship of that person’s financial affairs much sooner than previously possible. The previous lack of power for family members and loved ones to take over a missing person’s affairs could lead to unintended circumstances such as repossession of that person’s home or insolvency. This is particularly problematic where there are dependants who need to be provided for.
Prior 31st July 2019 the only option available was to apply to the High Court for a Declaration of Presumed Death under the Presumption of Death Act 2013. However, in the absence of evidence that the missing person has died, a family may have to wait 7 years before it can pursue a declaration. This is a very long time to wait where the missing person’s affairs are not being dealt with, for example mortgage repayments may not be made, any life insurance policy cannot be paid out and money held in a bank account is likely to be frozen.
Claudia’s Law creates a new legal status of ‘Guardians of the affairs of a missing person’ which will allow the families to act as guardian of a missing person where that person has been missing for 90 days or longer for a period of 4 years with an option to extend. An application will need to be made to the High Court to appoint the Guardian and if successful it will allow family members and loved ones to step in and safeguard the missing person’s financial interests. The aim is that these new powers will reduce the financial and administrative burden on families. It should also enable banks and other third parties to be able to discuss the missing person’s affairs without fear of breaching confidentiality or data protection laws.
Applications for Guardianship orders can only be made by persons over 18 who can demonstrate that they have a ‘sufficient interest’ in the property or financial affairs of the missing person. The missing person’s personal representatives, spouse, civil partner, parent, child and siblings are automatically considered to have sufficient interest. The Court must be satisfied that the appointment will be in the missing person’s best interests and that appointed guardian(s) will act in the best interests of the missing person. The 2017 Act also aims to ensure that the missing person’s assets and interests are protected from abuse.
Claudia’s Law addresses an anomaly in the law that not many are not aware of, it seeks to abate the financial stress that families face in these tragic circumstances and give them practical powers, whilst balancing the need to properly protect a missing person’s interests whilst they are absent.
This is Part 1 of 2 articles on the legal remedies open to families and loved ones where a person has disappeared. Part 2 will be published shortly.
Karen has previous experience in obtaining a declaration in the High Court under the Presumption of Death Act 2013. Should you need assistance for any issues raised in this article, then please contact Karen on 020 7631 4141 or by email on kbright@bishopandsewell.co.uk.
