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Accessible legal tips, know-how and news for anyone with a complaint or legal issue from Stephen Gold, author of The Return of Breaking Law, the book

Monday 24 June 2019

Alive But Missing: New Law

The Guardianship (Missing Persons) Act 2017 will come into force in England and Wales on 31 July 2019. It's taken a bit of time for this to happen after it was passed. I had considered reporting it as a missing piece of legislation.

The Act fills a gap in the law. If a person is missing for seven years then it may be possible to get the court to make an order that they are presumed to be dead. This then enables their affairs to be wound up as though their corpse had been found.

But say they're been missing for less than seven years or the evidence suggests that they are still alive, no matter how long they have not been heard of? This is where the new Act gets going. It will enable an adult to apply to the High Court to be appointed as their guardian and so administer their affairs. The application could be made by their spouse or civil partner or, with the court's permission, another relative or even a friend. If granted, the guardian would be able to access funds in the missing person's bank account, pay the mortgage instalments on their home or pay themselves maintenance, cancel a subscription to Playboy and do a myriad of other things in their best interests.

Before appointing a guardian the High Court will need to be satisfied that the person has been missing for at least the previous 90 days and that the appointment of a guardian is in the missing person's best interests. In urgent cases, the court will have a discretion to appoint a guardian even when the absence has been less than 90 days.

The court is likely to look for evidence from the police that the person has been reported to them as missing and to want to know the outcome of the police enquiries.

A code of or practice and procedural court rules dealing with these case are awaited.

If your marriage or civil partnership is a bit rocky, better not go on a prolonged holiday, eh?!