We have written previously about the Presumption of Death Act 2013 (“the Act”) which introduced legal mechanisms for a missing person to be declared dead for all purposes. This legislation replaced the hotchpot of measures that were in place beforehand in this situation and was no doubt welcomed by the families of the 250,000 people who go missing in the UK every year. Under the Act an application can be made to the High Court for a declaration that a person is dead if he or she is missing, presumed dead, or if the person has not been known to be alive for at least seven years.
Whilst the Act is an improvement on the previous situation the current legislation does not cater for the problem as to what happens to a person’s property and affairs if there is insufficient evidence for an application to be made immediately for a High Court declaration of death. In those circumstances seven years have to elapse before an order can be applied for on the basis that the missing person has not been known to be alive over this period. What happens to the management of the missing person’s finances in the meantime? At the moment no provisions exist to deal with this situation.
For example, Joe, a property developer, fails to return from a short break but there is no evidence that he has died. Unless some evidence comes to light in the meantime, Joe’s family would have to wait seven years before being able to apply for a court order stating that he is presumed dead. In the interim, Joe’s property empire is unmanaged and both his assets and his tenants are left in limbo.
Thankfully, relief should now be available for Joe’s family, and the family of other missing persons in similar circumstances, as it has recently been announced that the government is intending to create a new legal status of guardian of the property and affairs of a missing person. As these proposals have across party support it is to be hoped that they will be implemented whichever party is in power after the General Election.
A guardian for a missing person would be similar in some respects to an attorney or Deputy for an incapacitated person in that he or she must act in the missing person’s best interests and the guardian will be supervised by the Office of the Public Guardian which is responsible for overseeing Deputies and attorneys.
This announcement is to be welcomed as it addresses a gap in legislative provision and we look forward to receiving more details in due course.