The Guardianship (Missing Persons) Act 2017 (GMPA 2017) received Royal Assent on 27 April 2017 and came into force in England and Wales on 31 July 2019. This new law, otherwise known as ‘Claudia’s Law,’ will allow families to be able to deal with the affairs of missing loved ones by way of a Guardianship Order.
Before GMPA 2017 there was no mechanism to allow families to manage the affairs of a missing family member which effectively resulted in that person’s property being left unattended and potentially repossessed! The only way forward was to make a declaration of presumed death through the court.
This placed a significant burden on families in what was a difficult time in their lives. However it is hoped this burden will be eased with the welcomed enactment of GMPA 2017.
So, how do you apply for a Guardianship order?
The GMPA 2017 sets out certain criterion that has to be met in order to apply for a Guardianship Order.
The Act defines a missing person widely so it captures those who are absent from their usual residence and activities. Furthermore, the whereabouts of such a person should be unknown or not known to the extent that such person is unable to communicate decisions about their property and financial affairs. This can, by extension, include those detained elsewhere whether a in prison or similar establishment.
The court (Public Guardian) may grant a Guardianship Order only when certain conditions are met. Such conditions include that a person must be missing for a period of 90 days and that the appointment of a guardian is considered to be in the missing person’s best interests.
Whilst it is not possible to gauge precisely what the missing person may have decided, the court shall have reasonable regard to any wishes and feelings that may have been expressed by the missing person as reasonably ascertainable.
The period in which a Guardianship Order is valid is for up to 4 years although this can be extended.
What is the scope of the order?
Guardianship Orders are dealt with similarly to the current regime for deputies who are appointed to manage the affairs of persons lacking mental capacity under The Mental Capacity Act 2005. The guardian may have to provide the court security for exercising their functions and submit reports.
The court may set out specific duties; impose conditions, restrictions and requirements on the guardian’s authority allowing the court to tailor the terms of the appointment.
The rights and powers of a guardian allow them to deal with the sale, let or mortgage of a property, make investments, execute deeds, recover money owed to the missing person, discharge debts and even bring or conduct legal proceedings. It is also possible to provide maintenance for dependants or further, make gifts if authority is conferred in the Guardianship Order.
How can a solicitor help?
At Blake Morgan we have specialist and dedicated teams who can advise on your various needs throughout your guardianship application. This may include assisting in the sale of a property or providing investment advice. We are also fully versed in dealing with the court in relation to managing a person’s property and financial affairs generally and would be able to provide helpful guidance in your application to support you when you need it the most.
If you would like to discuss Guardianship Orders further please contact a member of the team here.
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