What are the differences between Guardianship (Missing Persons) Act 2017 and the Presumption of Death Act 2013?
Part 1 of our articles on Missing Persons provided information regarding Claudia’s Law, also known as the Guardianship (Missing Persons) Act 2017 (the 2017 Act), which came into force on 31st July 2019. This allows family members and loved ones of a missing person, after 90 days, to apply to the High Court to be appointed a guardian to take care of the missing person’s financial affairs. This is the extent of the powers of the 2017 Act. It will not allow a person to legally deal with assets of the missing person, such as the sale or transfer of any property, it will not bring a marriage to an end and it will not assist in administering the estate of a missing person.
The Presumption of Death Act 2013 (the 2013 Act) allows you to make an application to the High Court to obtain a declaration of presumed death. You may have to wait 7 years from when the person disappeared, before applying to the court, unless you have evidence that it is likely the person has died. This type of evidence could be that the person was in the locality of a terrorist attack or natural disaster, on board a plane which has gone missing or crashed, or they were involved in an accident at sea or similar. In the absence of a body and where the missing person’s estate needs to be dealt with, an application under the 2013 Act will be inevitable.
A declaration from the court under the 2013 Act, will be the equivalent of a Death Certificate and it will enable an application for Letters of Administration or a Grant of Probate, so the missing person’s estate can be dealt with, this may include obtaining any life insurance payments, selling property and it also has the effect of bringing a marriage to an end, enabling the spouse of the missing person to re-marry in due course, should they wish to do so.
It may be that where a person has disappeared and there is no evidence that they have died, an application under the 2017 Act should be made. This will allow the financial affairs of the missing person to be administered. A further application under the 2013 Act may then be made either at the 7 year period or earlier, where there is evidence of the person’s likely death.
Where there is evidence that the missing person is likely to have died, such as they were in the locality of a natural disaster, then it may be more appropriate to make an application under the 2013 Act. There is no requirement to wait 90 days before applying to the court and the court has a very stringent timetable of dealing with such applications. It is possible that where an application is made to the High Court with all the supporting evidence, and confirmation that the rules have been complied with, you may be able to obtain a declaration within three months from the issue of the claim.
This is Part 2 of 2 articles on the legal remedies open to families and loved ones where a person has disappeared. Part 1 is available here.
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 firstname.lastname@example.org.