What Steps to Take When a Loved One Goes Missing: Guardianship Orders and Presumption of Death Applications
Whilst the steps taken after the death of a loved one are clear, the situation is much more challenging when a loved one goes missing.
There can be various uncertainties that arise, including, for example:
- a lack of clarity on the missing person’s assets or ongoing liabilities,
- where the missing person owns property jointly with another person, no steps can be taken in relation to that property,
- where the missing person is a director / shareholder of a company, there will be uncertainty as to the future of their role.
These complexities only add to what is already a very distressing situation.
There are two potential avenues you can explore to get control over a missing person’s assets. These are:
- an application for a Guardianship Order, pursuant to the Guardianship (Missing Persons) Act 2017, and/or
- a presumption of death application, pursuant to the Presumption of Death Act 2013.
Guardianship Order
A Guardianship Order allows the applicant, known as the “guardian”, to manage the missing person’s assets without needing them to be legally declared dead. Given the significant consequences of making a Guardianship Order (i.e. that the guardian would be able to step into the shoes of the missing person), there are very stringent requirements that must be satisfied.
The court will need to be satisfied that:
- the missing person has been absent from their usual place of residence or absent from their usual day to day activities, and their current whereabouts be unknown (or not known with enough precision to be contacted), and
- there is a connection between the missing person and England and Wales,
- the missing person has been missing throughout the period of 90 days ending with the day on which the applicant was made,
- the application must be in the best interest of the missing person.
You can make an application where 90 days has not yet passed from the date of the disappearance, provided that you can satisfy the court that there is a need for urgency. A guardian must act in the best interests of the missing person and manage their affairs, which includes (where appropriate) selling the missing person’s property, making investments, discharging debts or making a gift out of the missing person’s assets.
Presumption of Death
A missing person is assumed to be alive until such a time as they are found or 7 years has passed from the date of their disappearance. An application can be made to declare a missing person legally dead if either:
- they have been missing for 7 years or more, or
- where they have been missing for less than 7 years, if there are circumstances or evidence to suggest that they are now deceased.
If the Court is satisfied that there is sufficient evidence to support the application, they will make an Order that the missing person is presumed to have died on a particular date at a particular time.
This is a very difficult and emotionally distressing situation to go through. The serious nature of these applications, coupled with the strict requirements imposed by the Court, mean that it is inherently sensible to get legal advice at an early stage.
If one of your loved ones has gone missing and you are unsure what to do, Howes Percival are able to help. Please get in touch with one of our specialists who will be able to guide you through the process.
Details of missing people are listed on the Missing People Register which can be found at this link: Appeal Search - Missing People
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.