Claudia’s Law – is it fit for purpose?

The Act  creates a new legal status, that of “guardian of the affairs of the missing person”, and a guardianship order can be applied for if the person has been missing for 90 days or more. Previous legislation (the Presumption of Death Act 2013) allowed family members to handle the missing person’s affairs only when they had been declared dead: this meant that the missing person’s affairs were effectively in limbo and additionally only added to the trauma and misery being felt by the family. Furthermore, declaring a person dead can have undesirable tax implications and cause huge financial complications if the person eventually re-appears. It was also necessary to wait seven years before being able to apply for a declaration of this nature. A very long time.

How does the new law work?

The new Act allows one or more guardians to be appointed, by the Court of Protection or the High Court, where a person has been declared missing for at least 90 days, i.e. where they are absent from their usual place of residence or day-to-day activities and either:

• Their whereabouts are unknown or sufficiently unknown as to not be able to contact them;
• They are unable to make decisions about their financial affairs for reasons other than issues of illness or mental capacity.

The guardian can only be appointed for a period of up to 4 years before having to re-apply for a guardianship order, and their powers include being able to sell the missing person’s property, make gifts out of it, and discharge the missing person’s debts.

What are the potential issues?

On the face of it, the guardian’s powers are extremely wide-ranging, and in the absence of a will or some other indication of the missing person’s wishes, there is naturally the complex problem of not always knowing what the missing person’s intentions would have been for their assets. There is also the question of whether 90 days is a long enough period to determine that a person may not be found, and whether the circumstances of their absence can be sufficiently taken into account to establish that the person’s disappearance is not part of a pattern of behaviour likely to result in their return.

Does Claudia’s Law address these?

For the most part, yes. The legislation is drafted in such a way that the missing person’s best interests are firmly at the centre of any application for a guardianship order. Section 8 stipulates that a guardian must act in what they reasonably believe to be the missing person’s best interests, and they essentially act in the capacity of the person’s agent. However, crucially, neither they nor the court are expected to decide anything by reference to the decision the missing person is likely to have made themselves, or to consider when or whether the missing person might return. This means that a lot of the guesswork is taken out of the process, and although the best interests test is a subjective one, the Court of Protection are in an excellent position to make finely balanced decisions about a missing person’s wellbeing.

Although the guardian’s powers are wide ranging, the appointment of the guardian will be carefully considered before an order is granted, looking at whether or not they are suitable for the position (again in relation to the missing person’s best interests), having regard to the guardian’s relationship to the missing person, considering the missing person’s opinion of them  (if known), whether the guardian has the necessary skills and knowledge to carry out their functions and considering any possible conflicts of interest. It is therefore clear that guardians will be appointed after careful consideration to minimise the risk that  their powers are not misused.

Nevertheless, the Act is not entirely without problems. Although the Court can revoke a guardianship order with or without an application being made, if it is satisfied that a person is no longer missing or it is within the missing person’s best interests, Section 13(2) of the Act states that if a guardian has reasonable grounds to believe that a person is no longer missing they must apply to the Court themselves for the revocation of the order. This process could be open to abuse, particularly given that prisoners are classified as missing persons for the purposes of the Act, who clearly can be released at any time. This also raises questions under Article 1 of Protocol 1 of the Human Rights Act, which protects a person’s rights to the peaceful enjoyment of their possessions.

Then there is the question of how the Court of Protection might cope with an influx of new applications for guardianship orders, given the already high demand for its services. Since its inception in 2005 that Court has had to deal with an ever-increasing caseload. The Explanatory Notes to the Bill that garnered Royal Assent for Claudia’s Law estimated that there could be between 50 and 300 applications made to the Court under this Act annually. This represents another significant addition to the Court’s already packed schedule, which could lead to delays in the granting of some orders.

Finally, there is the fact that this legislation only applies to England and Wales, which means there are potentially cross-border issues that did not arise under the previous legislation. These, again, could lead to further delays and complications in the granting of a guardianship orders.

Conclusions

While Claudia’s Law is not perfect, and questions remain as to how efficient the system of appointing a guardian of the affairs of a missing person will be, it remains the case that this piece of legislation will provide enormous relief to those already struggling with the loss of a loved one, as they will at least have an administrative burden lifted. In addition, unlike the requirements under previous legislation, the Act means the need to have to decide that the missing person will never return is avoided, which will come as a huge relief to those already very distressed families.