On 27 April 2017, the Guardianship (Missing Persons) Bill received Royal Assent and became the Guardianship (Missing Persons) Act 2017. The Act is not however yet in force. The Government anticipates that it may be implemented in 2018.
The Act makes provision for applications to court to appoint a guardian, or guardians, to manage some or all of a missing person's affairs, including property and financial matters for a renewable period of up to four years.
Currently, under the Presumption of Death Act 2013, a family are required to wait at least seven years or provide proof that the missing person ‘is thought to have died’ before they can apply for a ‘declaration of presumed death’.
The seven-year period has been criticised as being too long because in the meantime the family has no authority to deal with their affairs, so this adds practical and financial issues to an already stressful and emotional situation. A power of attorney, if one exists, can no longer be used because it can only be used if a person is known to be alive so if a person disappears nobody has the legal authority to protect or manage their affairs while they are missing. Under the new Act, applicants can apply to the court for a ‘Guardianship Order’ which allows them to handle the property and financial affairs of the missing person after they have been confirmed missing for more than 90 days.
The Presumption of Death Act 2013 is itself relatively new law. It came into force in October 2014 and provides a simple route for the High Court to make a declaration of presumed death, specifically set out in the Civil Procedure Rules Practice Direction 57B. Once obtained, it is effective for all purposes, including dissolution of marriages as well as providing a means to obtain a grant of probate to allow for the administration and distribution of a person’s estate as if they had died. Naturally, it is, therefore, a serious declaration for the court to grant and the court will only do so on the strongest of evidence, hence the helpfulness of the Guardianship Order potentially in the meantime. If at a later date the missing person returns, therefore the declaration is incorrect, an application to the High Court can be made to revoke or amend the declaration.
The Presumption of Death application involves providing personal details of both the applicant and the missing person; details of the circumstances of the disappearance, the steps taken to trace them, their estate and any other people who may have an interest. The claim has to be served on those persons and also advertised in at least one newspaper circulating in the vicinity of the last known address of the missing person, in case there are unknown others. Interested persons can oppose the application by filing a notice of intervention detailing their interest and their reasons for intervening. Whether or not there is an intervention, the application will be listed for a Court directions hearing at which directions may be given as to next steps, for example the claimant may be required to provide further evidence, or they may make a decision, which, if is to provide the declaration, the court will order the date and time of death. They decide on the civil standard of proof, i.e. on the balance of probabilities. The court made such a declaration in the 2017 case of Greathead v Greathead, where the missing person had suffered a history of depression which had included five previous failed suicide attempts, and he had not been seen for 11 years.
The introduction of the Presumption of Death Act 2013 was welcomed because before then; it was virtually impossible to deal with the affairs of a missing person. Now, both pieces of legislation are anticipated to work well together, to allow for management of a missing person’s affairs in the meantime, with the declaration required to allow for their estate to be finalised thereafter.