Missing persons’ affairs controlled by a guardian

The Government is proposing that the families of missing people could take control of their absent relative’s financial and legal affairs, enabling them to “protect a missing loved one’s life in their absence”.

Under the proposals, relatives could become “guardian” of the property and affairs of someone who has been missing for more than 90 days, in a move that is intended to help with the practical side of losing a loved one.

Commenting on the plans, Justice Minister Lord Faulks said that the sudden disappearance of a family member was a traumatic event for even the most resilient of people. He added that the emotional and personal problems caused by absences of several months or even years are obvious, but can be compounded by the practical consequences of the disappearance.

The Government is therefore considering the creation of a status of guardian of the property and affairs of a missing person to help enable these problems to be solved. The guardian could handle these matters for up to four years, with the possibility of an extension, and would have to account for their actions, such as managing their loved one’s direct debits, to a supervisory body.

The proposals are in addition to the introduction of “certificates of presumed death”, for which relatives will be able to apply from 1 October when a new Presumption of Death Act is fully implemented.

Under current law in England and Wales, the disappearance of a person does not affect the ownership or control of their property and affairs but the new Act will allow people to apply to the High Court for a declaration that a person who has been missing for at least seven years is presumed dead.

The missing person’s property would pass to others as though they had died and been certified dead. Similar legislation is already in place in Scotland and Northern Ireland.

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Nigel is the Managing Partner and Head of Litigation and Dispute Resolution in the London office of Mackrell Turner Garrett.