Delayed Introduction of Guardianship Legislation19 Jul 2019 | Jan Atkinson
The Guardianship (Missing Persons) Act 2017 comes into force on 31 July 2019. This is a full 27 Months after the bill was given Royal Assent in April 2017.
Currently, when someone goes missing, their family has no legal right to step in and manage their affairs. Under the new legislation, a person may apply to court for an order appointing them as the guardian of a missing person’s property and financial affairs. Prior to the Act, it was very difficult for family members to manage a missing person’s affairs unless a declaration of presumed death had been made. This could lead to financial problems for the families of missing persons, for example, if they were unable to access funds to pay a mortgage, which in turn increased the distress created by a family member going missing.
A ‘missing person’ under the Act is someone who is absent from his/her usual place of residence and usual day-to-day activities, and the person’s whereabouts are unknown, or the person is unable to make or communicate decisions regarding their affairs. The missing person should be domiciled or habitually resident in England and Wales.
The court must be satisfied that the applicant is a suitable guardian and will take into account a number of factors, including the length of time a person has been missing, and what is in the missing person’s best interests. The court may impose duties on the guardian and include conditions and restrictions in the guardianship order. Once appointed, the guardian will be supervised by the Office of the Public Guardian and will be required to keep and maintain records of decisions made and actions taken in their role as guardian. The guardian will be able to deal with the missing person’s affairs, including property, bank accounts, investments, personal possessions, income and liabilities. The guardian should have regard to the Code of Practice.