In addition to the emotional fears and concerns that arise if a close family member goes missing indefinitely, a number of serious practical matters need to be addressed. In particular, you may need to deal with the missing person’s relationships with third parties like banks, mortgage lenders, utilities and credit card companies and have no authority to act on the missing person’s behalf. This type of problem has now been addressed in part by the Presumption of Death Act which was introduced by a Private Members Bill and backed by the Government. At Common law there is a rebuttable presumption of death after seven years. In addition there are various piecemeal statutory provisions which in most cases are limited to the purpose of that procedure. The Act, which is not yet fully in force, follows the lead of legislation in both Scotland and Northern Ireland. It provides for a single statutory procedure enabling close family to obtain a declaration from the High Court that a missing person is deemed to have died. The Court can make the declaration if it is satisfied that the person has died or has not been known to be alive for a period of at least seven years. Once the declaration has been made, a copy will go to the Registrar General for England and Wales; this will be conclusive as to the presumed death and effective for all purposes. Thereafter the missing person’s property can be administered as if they had died and any marriage or civil partnership comes to an end. A new Register of Presumed Deaths will be linked to the current Register of Deaths. Provision has been made to revoke or vary a declaration if this should prove necessary. However looking to the Scottish experience (where the legislation was passed in 1977) only one person subject to an order has reappeared, although four to five orders are made each year.
The Act can be regarded as a first step only, as it does not seek to implement the Justice Committee’s recommendation for a guardianship procedure. It was thought when introducing the Private Members Bill that this would be too complex and potentially contentious. The proposals are that a new power of guardianship, possibly modelled on the approach taken by some States in Australia, would be created with a temporary status so that the family can deal with the property and affairs of the missing person, irrespective of whether that person is thought to be dead. The government in responding to the Justice Committee accepted that gaining control and access to a missing persons assets could overcome many problems faced and protect the interests of the missing person. However in turn it raised other issues regarding appointment, authority, how long the powers would last, accountability, supervision and the cost of this etc. It should be noted that neither the legislation in Scotland nor Northern Ireland currently provide for guardianship.
If you require further information, please speak to Richard Monkcom, Head of Druces LLP’sPrivate Client Team, or Louise Harman, Senior Associate, for more information.
