‘Claudia’s Law’ and the Court of Protection – helping relatives of missing people to safeguard their financial affairs
The story began on 18 March 2009, when 35-year-old Claudia Lawrence was last seen returning home from her shift as a chef at the University of York. An alarm was raised the following morning, when Claudia failed to turn up at work. An investigation into her disappearance and suspected murder was launched but despite six arrests, no charges were brought against anyone.
Claudia’s disappearance plunged her family into a state of despair. Not only have they had to deal with the devastation of not knowing what happened to Claudia, but they have also had the additional stress of struggling to deal with and safeguard Claudia’s financial affairs during the period of her disappearance. Under current legislation, the Presumption of Death Act 2013, families of missing persons are required to wait 7 years before they can apply for a ‘Declaration of Presumed Dead’, which would allow them to apply for a certificate to deal with their loved one’s financial affairs. Claudia’s family strongly criticised the legislation in force as Claudia’s property and affairs were effectively ownerless and the 7-year wait brought about additional anxiety to the family as they struggled to manage Claudia’s financial matters. The legislation would have also precluded the family from applying for a Grant of Probate, should she be deemed presumed dead, which can usually only be obtained following the presentation of a death certificate.
Approximately 250,000 people go missing every year in the UK and the Government recognised that Claudia’s family were not an isolated case. This, combined with the Lawrence family’s campaign for new legislation, gave rise to the Guardianship (Missing Persons) Act 2017 (“the Act”), which on 27 April 2017 received Royal Assent.
This new legislation, which is believed to come into force this year, enables the Court to appoint a Guardian to act for a missing person after they have been confirmed missing for more than 90 days. Section 1 of the Act defines “missing persons” widely, as people who are absent from their usual place of residence and usual day-to-day activities and their whereabouts are not known at all or are not known with sufficient precision to enable the person to be contacted for the purposes of decisions relating to his or her property and financial affairs.
The appointment will last for up to four years but can be extended upon expiry. Pursuant to section 6(4) of the Act, the rights and powers that a Guardian may be appointed to exercise include selling, letting or mortgaging the missing person’s property, making investments, executing deeds, recovering money owed to the missing person, discharging debs, bringing or conducting legal proceedings and making gifts. Former Justice Minister, Lord Faulks has been quoted as saying that “when someone suddenly disappears, their affairs can be thrown into disarray, adding to the distress and emotional heartbreak experienced by family members…. these measures will give legal powers to families, allowing them to take charge of their missing family member’s property and financial affairs”. The new legislation is a welcome development helping to fill the current void that exists with property and affairs management for missing persons.
As with the powers provided to Property and Affairs Deputies acting on behalf of people lacking mental capacity, the Missing Person’s Guardian will be entitled to be reimbursed from the missing person’s assets for reasonable expenses incurred in connection with the exercise of their Guardianship functions. A guardian will also have to act in what he or she reasonably believes to be the missing person’s best interests.
It is not known at the present time which Court will have jurisdiction to hear applications for Missing Persons Guardianship once the Act comes into force, but the rumour has it that the Court of Protection may well be tasked with this.
I guess we shall wait and see.