Guardianship Order will allow relatives to look after the affairs of a missing relation after only 90 days
From the 31st July 2019, the Ministry of Justice will be implementing a new Act that allows family members to apply to look after the property and financial affairs of relatives who are missing, through applying for what will be known as a “Guardianship Order”. This greatly improves the current position, under which family members can only start dealing with the finances of missing relatives after they have been missing for seven years.
How do the courts decide if a person is missing?
The Act defines “missing persons” widely to catch people who are absent from their “usual place of residence” and “usual day-to-day activities”. Logically, it usually starts with the police filing a formal record of a person’s disappearance but, interestingly, the Act specifically says a person will be deemed to be missing if they are detained in prison.
How long does a person have to be missing for?
The court-appointed guardian can start looking after the missing person’s assets 90 days after they have been declared missing – a considerable improvement on the seven years previously required. However, the applicant can also apply, and the court can review the case, before the person has been missing for 90 days, in order for the guardian to be in a position to be appointed as soon as possible after the 90 day period.
What will the guardian do on behalf of the missing person?
The guardian will have the same rights as a ‘deputy’ who is looking after the assets of a person who lacks capacity and will therefore be in control of all of their financial assets.
They must act in the missing person’s best interests. The Ministry of Justice will ask for reports from the guardian in relation to the missing person’s assets, in order for them to ensure there has been no wrongdoing.
The High Court has been designated as the court with responsibility over the provisions in the Act, in contrast to Deputyship applications where the Court of Protection has responsibility.
How long will the order last for?
A guardian is appointed for four years from the date specified in the order.
What happens if the missing person returns?
After the guardian has been made aware of the missing person’s return, they must apply for a revocation order from the Court. Once approved, the missing person will once again be in control of their assets.
This is certainly a positive change in the law, which should assist families with relatives who have been missing for fewer than seven years.
With the head of our wealth and estate planning team, Michael Culver, being a panel deputy and having managed the financial affairs of hundreds of people, we are in a position to assist clients expertly through the intricacies of making a guardianship application in addition to the management of missing persons’ affairs.
If you would like to find out more please e-mail Sam (firstname.lastname@example.org) or ring 020 7288 4764.
You can also contact one of our other solicitors in the Wealth Planning team here.