Missing Persons ' Guardianship And Presumption Of Death

• Published date: 09 September 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Court Procedure, Trials & Appeals & Compensation
• Law Firm: Wilberforce Chambers
• Author: Mr Michael Furness QC

This briefing is an introduction to two complementary pieces of legislation which are of relevance in circumstances where an individual has gone missing. These are the Guardianship (Missing Persons) Act 2017 and the Presumption of Death Act 2013. The former is available where it is desired to appoint a guardian to manage the assets of a missing person, and the latter is designed to enable declarations of death to be obtained in appropriate circumstances.

It has to be said that neither piece of legislation is without its challenges, and although devoted to closely linked issues, they are not designed as a unified code.

The Guardianship Act

The Guardianship Act is a very detailed and prescriptive piece of legislation. The Act itself is long, having regard to its limited subject matter. There are then the rules in CPR57.25 to 57.32 and accompanying notes, and Practice Direction PD57C,. There is then the 81 page Code of Practice published by the Ministry of Justice to consider¹ . The sheer mass of material to be assimilated, and the detailed requirements placed in the way of applicants, may account for what appears to be the limited use made of this legislation. My understanding is that two applications under the Act on which I appeared earlier this year were the first applications which had been made under the Act in the Chancery Division. There may also have been one in the Family Division and maybe a few in District Registries. There are no reasoned judgments available for any of these applications.

In addition to the material referred to above, there is a guide to the legislation for the judiciary written by former Chief Master Marsh. This has not been published, which is unfortunate because it is very useful. It has a checklist of all the matters which the Court needs to consider before making an order (totalling 26 items), and a couple of draft orders. If you have an application under the Act I suggest you ask the judge if you can see the Guidance, or at the least the checklist and the draft orders.

You should watch out for the fact that the Court may require the provision of a security bond by the person being appointed guardian. In both of my recent applications the Court dispensed with that requirement, but it would be as well to have a bond lined up in case the Court decides to require one.

If successful the guardian will have authority to manage the assets of the missing person, and will be under a duty to do so to have regard to the missing...