'Claudia's Law' - The Guardianship (Missing Persons) Act 2017

'Claudia's Law' - The Guardianship (Missing Persons) Act 2017 - set to provide relief for families of missing persons

 

Why is it needed?

“I have got a very good family to support me. If I didn't have that support... I would probably have had my house repossessed...”¹Every year 180,000 people are reported missing, the large majority of which are found within days or weeks. However, when a missing person cannot be found within this timeframe their next of kin is faced with the prospect of months if not years of uncertainty and distress. Currently the law allows an application to be made to the High Court for a declaration that a missing person is presumed to have died. The application can only be made if the missing person has not been known to have been alive for the past 7 years or if the court is satisfied that the missing person has died. If such a declaration is not made then the missing person's property is essentially left ownerless. This is not only very emotionally upsetting and burdensome for the missing person's next of kin, but also means that their next of kin has no legal authority to make decisions in relation to the missing person's finances and property. These are just a few examples of practical difficulties that can arise:

• A family home could be repossessed.
• Bank accounts could become overdrawn.
• Bills could be left unpaid.

 

How does Claudia's Law aim to solve these problems?

The Guardianship (Missing Persons) Act 2017 comes into effect on 31 July 2019 and allows the court to appoint someone with a 'sufficient interest' in the missing person's property and financial affairs to manage a missing person's assets after 90 days of their disappearance.  The Guardianship (Missing Persons) Act 2017 - Code of Practice suggests that the appointment after 90 days will prevent the missing person's property 'falling into disrepair and dependants facing legal and financial problems because they no longer have access to the financial support the missing person provided. 'The appointment should also assist the missing person's next of kin to move forward, offering a possible solution where the circumstances of the disappearance are unknown or where the next of kin cannot face the finality of a declaration of presumed death.

 

How can we help?

Applications for guardianship orders must be made to the Chancery Division or the Family Division of the High Court. They are classified as a 'claim' and a claim form must be issued in accordance with Part 8 of the Civil Procedure Rules. The information required in the claim form is very similar to that which is required when making a Deputyship Application on behalf of a person who has lost capacity. Our specialist Court of Protection team is ideally placed to sensitively advise you in the application and registration process. Once appointed, the guardian will be supervised by the Office of the Public Guardian under the Lasting Powers Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007. These are the regulations that govern attorneys acting under Lasting Powers of Attorneys and are very well known to our experienced Court of Protection team. The team has years of experience in this area and has recently been shortlisted at the STEP Private Client Awards, which are seen as the hallmark of quality within the private client industry.

 

Conclusion

The new Act aims to reduce some of the distress for a missing person's next of kin and provide some legal authority to deal with a missing person's property and financial affairs.

 

Please do contact our specialist team if you are thinking about making an application to be appointed as a guardian on 01865 781105 (Louise Lewis).Article written by Morwenna Scott

 

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¹ House of Commons Justice Committee (2012) Presumption of Death London: The Stationery Office Limited. Ev 1