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Missing persons, guardianship and the presumption of death

Published Monday, March 21, 2016

The Commons Library has published a briefing paper which provides information about looking for a missing person and dealing with their property and affairs

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This Commons Library briefing paper provides information about looking for a missing person; proposals to create the new legal status of guardian of the property and affairs of a missing person; and presumption of death legislation. 

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.   

The law assumes that a missing person is alive until the contrary is proved.

Anyone wishing to deal with a missing person’s property and affairs should consider seeking specific legal advice based on all the circumstances involved. 

Guardianship

At present there is no mechanism which specifically protects the property and affairs of a missing person.  This can lead to serious practical problems.

Following calls for reform, the previous Government consulted on whether there ought to be a new legal mechanism by which a person (“a guardian” might be the term used) could be appointed to act on behalf and in the best interests of a missing person. 

On 23 March 2015, the Ministry of Justice published its response to the consultation and confirmed the previous Government’s intention to create the new legal status of guardian of the property and affairs of a missing person.  This would require primary legislation. 

The response document stated that there had been strong support for the provisional proposals.

In March 2016, in answer to a Parliamentary question, the Government indicated that legislation would be introduced “as soon as Parliamentary time permits”.

Presumption of death

In June 2012, following calls for presumption of death legislation, John Glen introduced a Private Member’s Bill, the Presumption of Death Bill.   The Bill was sponsored by Baroness Kramer in the House of Lords.  The Government supported the Bill which is now the Presumption of Death Act 2013 (the Act), having received Royal Assent on 26 March 2013.   The Act came fully into force on 1 October 2014.

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.

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

This note 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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