Guardianship

The act defines a missing person as:

• being absent from his or her usual place of residence,
• being is absent from his or her usual day-to-day activities, and
• the first or second condition is met.

The first condition is met if the person’s whereabouts:

(a) are not known at all, or

(b) are not known with sufficient precision to enable the person to be contacted for the purposes of making decisions relating to their property and financial affairs.

The second condition is met if:

(a) the person is unable to make decisions relating to his or her property and financial affairs or to communicate such decisions with a view to their implementation (or both), and

(b) the reason for this is beyond the person’s control, other than illness, injury, or lack of capacity in relation to a matter (within the meaning of the Mental Capacity Act 2005).

The Guardianship (Missing Persons) Act 2017 – also known as Claudia’s Law- came into force on the 31^st of July 2019 (in England & Wales).

The legislation was passed to help families and others trying to cope with the effects of the disappearance of a loved one. According to figures compiled by the charity Missing People, 180,000 people are reported missing every year in the UK, that is one every 90 seconds. Of this figure, nearly 100,000 are adults

The Act creates a legal framework to enable an application to be made to Court for a Guardianship order to be made to appoint a Guardian to manage the Property and Financial affairs of the missing person.

Before the Act’s implementation, there were no systems in place to enable family members or loved ones to manage the Property and Financial affairs of a missing person. This resulted in additional debts, repossession of a property, property disrepair and in serious cases a risk of fraud, insolvency/bankruptcy.

In most cases the management of the missing persons affairs could not be dealt with until it was known that they had died or after death was declared.

The introduction of the Guardianship Order now enables families to help with their loved one’s property and financial affairs and reduce any unnecessary worries or concerns at a time when they are already dealing with the unknown whereabouts of their loved one.

The Act sets out the criteria which are required to be met and the procedure to follow when applying for a Guardianship order:

• Applications are made to the High Court
• The High Court will appoint the Guardian

The Office of the Public Guardian provides ongoing supervision for the appointed Guardian under the Lasting Powers Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007.

• Court Fee upon application
• Insurance premium for security (determined by the Court)
• Office of the Public Guardian set up and annual management fees

The Guardianship Order appoints a guardian for a maximum of 4 years, although this can be extended by application.

The court will inevitably decide who they believe is suitable to be appointed as a Guardian and will consider the following:

• the proposed guardian’s relationship with the missing person
• the missing person’s views on the proposed guardian, if known, or can be reasonably ascertained by the court
• the proposed guardian’s ability to act in the best interests of the missing person
• whether the proposed guardian has the skills and knowledge necessary to carry out the role as guardian under the terms of the guardianship order
• any conflict between the proposed guardian’s interests and the missing person’s interests
• any other documents belonging to the missing person indicating their wishes – a Will, a Lasting Power of Attorney, expression of written wishes etc

The Guardianship Order will set out the rights and powers that the appointed guardian is authorised to do which may include:

• selling, letting, or mortgaging the missing person’s property
• making investments
• executing deeds and any other documents on behalf of the missing person
• recovering money owed to the missing person
• discharging debts and other obligations of the missing person (whether legally enforceable or not)
• resigning trusteeships held by the missing person
• bringing or conducting legal proceedings
• making a gift out of the missing person’s property

However, a guardian may not:

• execute a Will for the missing person, or
• exercise a power vested in the missing person as a trustee in relation to another person’s property.

The Guardian may be required to consider whether it is in the best interests of the missing person to seek specialist advice from an Independent Financial Advisor, Accountant, Surveyor, Estate Agent,  Solicitor or any other professional when making decisions in relation to their Property and Financial affairs

The Guardian is required to maintain full financial records of all decisions they have made in relation to the Property and Financial affairs of the missing person as they may be requested by the Office of the Public Guardian or even the Court.

The Guardian may be required to apply to Court for additional authority to make certain decisions if they are not included in the initial Guardianship order.

• if the missing person is found
• if the missing person is defined as ‘no longer missing’
• if the court believes the appointed guardian is no longer able to carry out their appointed role
• if the court determines that the appointed guardian has not been acting in the ‘best interests’ of the missing individual
• if the missing person has died
• if a declaration of presumed death in respect of the missing person under section 2 of the Presumption of Death Act 2013 has been made
• the death of the appointed guardian
• upon the expiry of the guardian’s period of appointment.

The application process is complex and requires substantial information to be provided to the court in relation to the property and financial affairs of the missing person.

A solicitor will provide guidance as to the information and documentation required from you to ensure that the Guardianship order has sufficient scope to enable the appointed Guardian to fully manage the Property and Financial affairs of the missing person.

Your solicitor will assist in drafting the application in order to make sure that all documents and statements are correct.

Oakwood Solicitors Ltd can assist you through this process and provide you with the necessary advice. Our team has gained an excellent reputation amongst local organisations and their client-base for delivering a personal and compassionate service.

As a firm, we pride ourselves on having a high standard of customer service and making all our current and potential clients feel at ease when making any decisions regarding their future wishes.

You will have a dedicated advisor who will work through the process with you from start to finish, assisting you in the event of any queries or issues you may have. Your advisor will also continue to provide regular updates until you receive your order. We will ensure the process is as stress-free and effortless as possible.