Most people assume that when someone goes missing their family is able to “take over” and manage their financial affairs until they are found. Whilst this is the case in some countries, this is not the case in England & Wales. Andrew Hasnip, Partner and head of Private Client team at the Wilkes Partnership, looks at the issue and new proposals being put forward by HM Government to address it.
There is currently no legislation in place to enable families to protect the assets of a missing person which results in an already distressing time becoming even worse. Most intuitions, in particular banks, will not deal with (or even discuss) the financial affairs of a missing person – not even with next of kin. This frequently results in the missing person’s finances getting into difficulties – as bills and mortgages go unpaid and go into arrears and unnecessary direct debits continued to be paid. The resulting fines, repossessions and other enforcement actions which can significantly (and unnecessarily) deplete the individual’s assets over time.
In response to this issue, HM Government has issued the long awaited Consultation Paper on Guardianship of the Property & Affairs of Missing Persons. This brings the families of missing people one step closer to receiving the help and support they desperately need in order to safeguard and manage the financial affairs of their missing loved one, for example, ensuring bills are paid, unnecessary direct debits are cancelled and dependants are properly provided for.
The Consultation puts forward a variety of proposals, the aim of which are to put mechanisms in place to give families the support they need in order to protect and maintain their missing loved one’s assets.
It also seeks to ascertain public views on whether a system should be created enabling a person to be appointed to act on behalf of a person who has gone missing, to deal with their property and affairs and, if so, on what terms.
Andrew comments, “Having a member of the family go missing is distressing enough without the added stress of being powerless whilst valuable assets and monies are wasted. This has become an increasingly difficult problem as our financial affairs – and our relationships with banks – have become more and more automated. Legislation in this area is, in our view, long overdue. This consultation – and hopefully legislation – can go a long way to enabling families to deal with the assets of a missing relative.
“The proposal borrows heavily from the current Court of Protection – an area where we have particular expertise and knowledge. The process would be akin to a Court supervised “guardian” – similar to a Court of Protection “Deputy” – who is required to act in the best interests of the individual, who by reason of mental incapacity is unable to manage their own financial affairs. The appointment will be subject to any limitations sanctioned by the Court. It is a system that currently works well for the interests of both the family and the incapacitated person concerned and we welcome it.
“The suggestion that a person can be appointed just 90 days after someone goes missing and remain in charge of their affairs for up to 4 years was a surprise. Under the new Presumption of Death Act 2013 which comes into force on 01 October 2014, it could take up to 7 years for an individual to be declared legally dead. It might be more sensible for the appointment to be until the missing person is located or a death is assumed under the new rules.
“Whilst it is welcome that any appointment is to be sanctioned by the Court, there is no indication as to the criteria the Court will apply to determine appointments. Under the proposals any family member or interested party may apply, but we would expect that a ranking system would apply for applicants as is currently seen.eg spouse first for a married person, followed by blood relatives with responsibility for guardianship of any children, etc. However, the Court will most likely look at each case on its merits.”
The Consultation remains open until 18th November 2014. To provide your views, please click here.
If you would like to discuss any of the issues raised, or if you seek any advice in relation to the Court of Protection, please contact Andrew Hasnip on 0121 233 4333 or email firstname.lastname@example.org.