Missing Persons: how to protect a loved one's property and financial affairs

When is a guardian needed?

Every year thousands of individuals are detained in prison or sadly reported missing. Whilst these individuals are away from home, their property is essentially ownerless as family members have no automatic legal authority to make financial decisions or access their money to pay ongoing expenses. The recent Guardianship (Missing Persons) Act 2017 allows a person, such as the spouse or a professional guardian instructed by the family, to apply to the High Court for a guardianship order. The order gives the 'guardian' authority to carry out financial tasks such as paying bills, accessing bank accounts, recovering money owed or carrying out essential building works on the missing person's property.

What are a guardian's powers?

The powers of a guardian are similar to those of an attorney or deputy for a person who has lost mental capacity. The specific powers will be tailored to the circumstances in each case and may include powers to sell, let or mortgage property; make investments; recover debts; pay bills; and bring legal proceedings. 

Who is a 'missing person'?'

Missing person' is widely defined as people missing from their usual residence and so it can include people detained in prison and people whose whereabouts are not known so they cannot be contacted to make financial decisions. Neither police evidence nor a formal record of a person's disappearance is required however, a police report will be persuasive evidence to support a guardianship application.

Who can be a guardian?

The court will decide whether an applicant is suitable to be a guardian and must be satisfied the applicant will act in the missing person's best interests. Certain family members are automatically considered to have a 'sufficient interest' and so an application by them is more likely to be successful. These individuals include: personal representatives, spouses, civil partners, parents, children and siblings. If you are not in one of these categories, you will need to ask the court for permission to be appointed. After a guardian is appointed, they will be supervised by the Public Guardian to ensure they continue to act in the best interests of the missing person. 

How Freeths can help

Freeths' Court of Protection team can offer advice on guardianship applications for families and also on making financial decisions after a guardian has been appointed. Our court-approved guardian, Jane Maitland, is particularly well placed to act as a professional guardian for a missing person. Jane has extensive experience of acting as a professional deputy, independent administrator, and executor and trustee of estates and trusts. These specialisms allow her to ensure clients' assets are appropriately arranged and preserved whilst they are missing.One of our solicitors, Robyn Hemmings, has a background in prison law and so is ideally suited to provide support in the guardianship of detained individuals.If you would like to discuss guardianship orders, please do not hesitate to contact the Court of Protection team.