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Missing persons, guardianship and the presumption of death

Published Thursday, February 23, 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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Extent (area covered)

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

Additional reading

Information in this briefing paper about guardianship of missing persons, including about the Private Member's Bill Guardianship (Missing Persons) Bill 2016-17 which is due to have its Report stage and Third Reading on 24 March 2017, can be accessed as a separate document, Guardianship of the property and affairs of missing persons.   

Looking for a missing person

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.

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

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.

Coalition Government consultation and response

Following calls for reform, the Coalition Government consulted on whether there ought to be 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. 

Private Member's Bill

On 11 January 2017, Kevin Hollinrake introduced a Private Member’s Bill under the Ten Minute Rule, the Guardianship (Missing Persons) Bill 2016-17 (the Bill). 

When introducing the Bill, Kevin Hollinrake set out its intended purpose of setting up a mechanism to deal with the property and financial affairs of a missing person.  The Bill was published on 27 January 2017.  It would extend to England and Wales only. 

Explanatory Notes to the Bill, prepared by the Ministry of Justice with the consent of Kevin Hollinrake, were also published. The Bill would enable the court to appoint a guardian to act in the best interests of a missing person in relation to their property and financial affairs. The Bill also makes provision for the Public Guardian to supervise guardians.

Progress of the Bill

The Bill had its Second Reading without debate on 3 February 2017. One sitting of Public Bill Committee took place on 21 February 2017. The Government and the Opposition supported the Bill and mention was made of support from interested parties outside of Parliament. 

The Bill was reported without amendment.  Report stage and Third Reading of the Bill are due to take place on 24 March 2017.

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

Further information

Publication details

Commons Briefing papers SN04890

Author: Catherine Fairbairn

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

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