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Missing persons, guardianship and the presumption of death

Published Wednesday, July 5, 2017

This Commons Library research briefing provides information about looking for a missing person, dealing with their property and affairs while they are missing, and applying for a declaration of presumed death

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When a person goes missing, depending on the circumstances, someone else may need to look for the missing person; deal with their property and financial affairs while they are missing; and/or apply for a declaration of presumed death.

Looking for a missing person

A missing person may be reported to the police. In addition, a number of organisations offer assistance in searching for a missing person. 

Guardianship

A person going missing may give rise to a range of difficult financial consequences, as well as emotional and personal problems.

Following calls for reform, the Coalition Government consulted on the introduction of a new legal mechanism by which a person (“a guardian”) could be appointed to act on behalf of, and in the best interests of, a missing person. In March 2015, the Ministry of Justice published its response to the consultation and confirmed the Coalition Government’s intention to create the new legal status of guardian of the property and affairs of a missing person.  The response document stated that there had been strong support for the provisional proposals. 

The Guardianship (Missing Persons) Act 2017, began as a Private Member’s Bill introduced by Kevin Hollinrake under the Ten Minute Rule. The Bill was based on the Coalition Government’s consultation proposals and was supported by the Government and the Opposition.  The Act has been referred to as “Claudia’s law” – referring to Claudia Lawrence who is missing.  It extends to England and Wales only.

The Act enables the appointment of a guardian to act in relation to the property and financial affairs of a missing person. It also provides for the supervision and regulation of the way that guardians exercise their powers.

The Act is not yet in force. The Government anticipates that it may be implemented in 2018.

Presumption of death

The Presumption of Death Act 2013 came fully into force on 1 October 2014. It started as a Private Member’s Bill, introduced by John Glen, which had Government support, and it followed calls for reform in this area.

The Act enables an application to be made to the High Court for a declaration that a missing person, who is thought to have died or who has not been known to be alive for at least seven years, is presumed dead. Once it can no longer be the subject of an appeal, a declaration is conclusive as to the presumed death and effective for all purposes and against all persons.  The missing person’s property passes to others and his or her marriage or civil partnership is ended.

Presumption of death in Scotland and Northern Ireland

Both Scotland and Northern Ireland have legislation governing the presumption of death: respectively the Presumption of Death (Scotland) Act 1977 and the Presumption of Death Act (Northern Ireland) 2009

Both Scotland and Northern Ireland have separate legislation governing the presumption of death.

Extent (area covered)

This briefing paper deals with the law in England and Wales, unless otherwise stated. 

Commons Briefing papers SN04890

Author: Catherine Fairbairn

Topics: Civil law, Death, Registration of births, deaths and marriages

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