In certain circumstances, you may need to apply for Guardianship to deal with the legal affairs of a missing loved one.
The emotional upheaval of a friend or family member going missing can be made even more challenging when their assets need to be dealt with such as a property. The legal provisions created to deal with these difficult circumstances are known as ‘Claudia’s Law’ or more formally the Guardianship (Missing Persons) Act 2017.
Where a person goes missing, they are presumed to be alive unless it is proved otherwise. If there is no Lasting Power of Attorney in place appointing someone else to manage their property and financial affairs, difficulties can arise when their mortgage cannot be paid, or their business cannot be managed.
An application for Guardianship of a missing person can be made when an individual is absent from their usual residence and activities and their whereabouts are not known for contact to be made. Other more unusual circumstances are also covered. This includes when a person is absent for reasons beyond their control and they cannot make or communicate their decisions, for instance during a hostage situation.
Once appointed, a Guardian can have a range of rights and powers, depending on the specific terms of the Order made. This could include the ability to sell property, execute documents, bring or defend legal proceedings for the missing person or make a gift from the missing person’s funds.
The Guardian will be guided by a ‘best interests’ checklist when making decisions and is required to keep records and submit a periodic report to the Office of the Public Guardian (the OPG).
Occasionally, there may be disputes in relation to the conduct of a Guardian, such as whether a proposed act by the Guardian would be in the missing person’s best interests. In certain circumstances, an application might need to be made to ask the Court to make a ruling on a specific issue, to seek a variation of the Order by the Court to authorise the Guardian to take the step proposed or to bring the appointment of the Guardian to an end.
If you believe that an application for Guardianship might be necessary, may need to be varied or should be brought to an end, you should seek specialist legal advice.
