The Missing People Charity highlights the importance of understanding guardianship of property and financial affairs to protect loved ones’ belongings, as 180,000 UK people are reported missing annually.
The Guardianship (Missing Person) Act 2017
The Guardianship (Missing Persons) Act 2017 – also known as Claudia’s Law- came into force on the 31st of July 2019 (in England & Wales).
The legislation provides a legal framework for a Guardianship order to manage the property and financial affairs of a missing person, allowing families to assist with their loved one’s affairs and reduce unnecessary worries, especially when dealing with the unknown whereabouts of their loved one.
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 person’s affairs could not be dealt with until it was known that they had died or after death was declared.
What is a ‘missing’ person?
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).
What is the role of a guardian?
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)
- Designing 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 need to consult with a specialist when making decisions about the missing person’s property and financial affairs and must maintain full financial records of all decisions made, as requested by the Office of the Public Guardian or the Court.
This ensures the best interests of the missing person are considered when making decisions. Additional authority may be required if not included in the initial Guardianship order.
Who can apply to be a guardian?
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 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.
How do I apply for a guardianship order?
The Act sets out the criteria that 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.
Frequently asked questions:
What fees are payable?
- Court Fee upon application
- Insurance premium for security (determined by the Court)
- Office of the Public Guardian set up and annual management fees.
How long is a guardian appointed for?
The Guardianship Order appoints a guardian for a maximum of 4 years, although this can be extended by application.
When is guardianship revoked?
- 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.
Why use a solicitor?
The application process is complex and requires substantial information to be provided to the court about 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.
Further information:
Oakwood Solicitors Family Law: Guardianship.
WHAT TO DO NEXT:
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.
Get in touch today for a no-obligation consultation. Choose one of the methods on the right-hand side of this page or call us on 0113 200 9720 to find out how we can help you.
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Charlotte Bandawe is our Head of Wills and Probate department, leading a team of three other colleagues.
Charlotte is also a member of The Association of Lifetime Lawyers. View her Association For …
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