Working with families of missing people

Lord Lucan was in the news in October last year, with his son’s bid to inherit the earldom from his father, who disappeared in 1974 after the family nanny was found murdered. The news highlights the practical difficulties facing families whose loved one is missing and is thought to have died.¹ It also brings to our attention the 2,445 families whose loved one has been missing for more than three months and who are unable to manage their loved one’s property and affairs.²

The Presumption of Death Act 2013

The Act, which came into force in October 2014, much improved this situation. Under the new law, which was passed after a lengthy campaign from the charity Missing People, families can apply for a declaration of presumed death, which means that they can then apply for a certificate of presumed death, which allows them to administer their loved one’s estate. This is a far simpler and more straightforward means of resolving a missing person’s finances and property, when they are believed to have died, than the previous complex and confusing approach.

However, many legal professionals are unfamiliar with the new law, and Missing People is actively campaigning to highlight the law as an option available to families of missing people. Although the law helps families to resolve their missing loved one’s affairs, making the decision to apply for a declaration of presumed death is a diÿcult , daunting and emotional one,’ said Susannah Drury, director of policy, research and development at Missing People. ‘The process is currently made all the more challenging as we know that there is a shortage of legal and financial professionals who are familiar with the new legislation.’

Susannah Drury cites the case of one family, whose suicidal 20-year-old son with Asperger’s Syndrome disappeared in 2012. While he was witnessed jumping from the Humber Bridge and had left suicide notes, no body was found, and the family decided to pursue the legal process for presumption of death.

The young man’s mother found that she had to manage the application on her own after discovering that local law firms were unfamiliar with the process. While it was ‘bittersweet’ when the judge granted a presumption of death certificate, the family was finally able to deal with such practicalities as closing accounts and stopping letters addressed to him.

Guardianship of property and affairs of a missing person

While some families may choose, or be forced, to apply for a presumption of death certificate, for others it is not appropriate. The primary reason a family might apply for legal guardianship is that they want to manage their loved one’s property and affairs, as they hope their loved one will return. In some cases, it might be there is not enough evidence to prove that their loved one has died or the family may not be in agreement that a certificate should be applied for.

Missing People has been campaigning for several years for the government to introduce legislation to enable the families of missing people to manage the property and affairs of their missing loved one. In addition to the emotional trauma of having a loved one missing, relatives can encounter a range of practical, financial and legal diÿculties as a result of a disappearance. They may approach professionals for help with banking, insurance, benefits and their missing relative’s home. For example, families may face challenges in engaging financial institutions on their relative’s behalf, in renegotiating a mortgage held jointly with the missing person, or in selling jointly owned property.

The consequences of this can be devastating, especially if it puts the missing person’s - and potentially their family’s - home at risk: ‘I have got a very good family to support me. If I didn’t have that support … I would probably have had my house repossessed’ (Wife of a missing man).

Missing People believes that a system must be introduced to help families cope with the legal and financial repercussions of having a missing loved one. The charity is therefore calling for a system of legal guardianship to enable families to apply for the legal right to manage a missing loved one’s affairs while they are away.

Once introduced, families would be able to apply to the courts for the legal right to manage and safeguard a missing relative’s practical affairs while they are away: similar to a power of attorney. While no such system currently exists in any of the UK nations, a precedent has been set in Australia, where applications can be made after a person has been missing for 90 days or more.

The coalition government announced in March 2015 that it would introduce legislation for guardianship provisions. At the time of going to press, the government had not committed to a parliamentary timetable. Missing People continues to campaign for this law to be introduced without delay.³

Missing People has published information for professionals working with families on a missing person’s financial or legal affairs:

• Information for professionals, available here
• Family guidance on presumption of death, available here; and
• Coming soon is specific guidance for professionals on presumption of death, which will be available here

 Government guidance is also available.⁴