This publication was originally published by The Justice Gap: 

It has been estimated that 250,000 people go missing in the UK every year. For those left behind, dealing with the trauma of a missing family member or friend can become overwhelming. Add to that the stress of having to deal with that person’s property and finances and it becomes clear why multiple campaigns have lobbied parliament over the years for a change in the law.

A new Act, first introduced by Kevin Hollinrake MP as a Ten Minute Rule Bill, received Royal Assent on 27 April 2017 to fill a gap in the current provisions for dealing with missing persons’ assets. The Guardianship (Missing Persons) Act 2017 was given the nickname of ‘Claudia’s Law’ in recognition of Claudia Lawrence who went missing on her way to work at the University of York in 2009.

The Act is not yet in force but when it is it will add to the jurisdiction of the Court of Protection, a relatively new court created by the Mental Capacity Act 2005. The introductory text to the Mental Capacity Act makes it clear that the purpose of the Court of Protection is to make provision for individuals who lack capacity to make decisions for themselves. This typically involves individuals with a mental disability but the new Act expands this role and it can now make decisions about people who, by virtue of being missing, cannot make provision for their own property or financial affairs.

The Court has attracted criticism since its inception for sitting in private. This is to protect the privacy of the people involved. However, in the wake of moves to allow reporters more access to family court hearings and owing to the ongoing criticism, the Court introduced a pilot scheme which makes the Court’s activities more transparent. Under the pilot, the general rule is that hearings will be in public, but the names of the people involved can’t be published.

Mechanisms of the Act
When in force, the new Act will provide the family and friends of missing persons with a legal mechanism to help deal with the individual’s financial and property affairs. Prior to this Act, if a person went missing, their property was effectively left ownerless and no one had legal authority to protect it on their behalf. The only way that an individual could become authorised to deal with their loved one’s property was to ask for them to be ‘presumed dead’ under the Presumption of Dead Act 2013. This required a person to have been missing for at least seven years or for there to be some proof that the missing individual ‘was thought to have died’. Only then could their loved ones apply for a ‘Declaration of presumed dead’.

Similarly to the more typical applications before the Court of Protection, section 2 of the new Act allows family and friends of missing persons to apply to the Court for a ‘Guardianship Order’. This allows them to manage the property and financial affairs of the missing person. The guardianship would be administered by the Office of the Public Guardian and would be renewable depending on circumstances.

The Court has jurisdiction to hear and determine an application in relation to property or financial affairs of a missing person only if the person was domiciled in England and Wales for a least a year before the day that they were first known to be missing. Or alternatively, if the person was not domiciled in England and Wales, the application can be made by the person’s spouse or civil partner so long as that person is domiciled or habitually resident in England and Wales.

There is a question in a House of Commons briefing paper from last year as to whether the Act appropriately protects a person’s rights under Article 1 of Protocol 1 of the European Convention on Human Rights. That is whether the Act has sufficient safeguards to ensure that a missing person does not lose their right to the peaceful enjoyment of their property. Although the Act gives Guardians power to dispose of and deal with another person’s property and financial affairs, this exists so as to protect the property of the missing person.  The Guardian is subject to the supervision of the Public Guardian and section 8(1) of the new Act requires the Guardian to act in the best interests of the missing person.

The Court of Protection is experienced in making-finely balanced decisions about whether a certain action would be in an incapacitated person’s best interests. When considering who to appoint as a Guardian, the court must make a quasi best interests assessment and have regard to a number of factors. Further, Guardians are required to act in the best interests of the missing person for every decision that they make about their property or finances.

We have been promised a Code of Practice to explain how this new mechanism of the Court will work in practice. According to Clause 22 of the new Act, when it is finalised, the Code of Practice will provide guidance for both the Court and Guardians on how their new powers should be exercised. Until the Act comes into force and the Code of Practice is drafted however, the Court of Protection cannot do anything for missing persons and will continue to protect only people who, by virtue of their incapacity, can’t make decisions for themselves.

Families and friends of missing persons hope that it won’t be too long before they are given the powers that they need and many feel that they have waited long enough.

Alex Cisneros
January 2018