Ella Pudney, in our Private Wealth Disputes team discusses Applications for Guardianship under the Guardianship Act 2017.
When someone goes missing their financial affairs can come to a standstill with mortgage payments going unpaid, family members not being financially supported and direct debits continuing without reason.
Under the Guardianship (Missing Persons) Act 2017, a claim for a guardianship order allows the applicant to obtain the legal right to manage the property and financial affairs of a missing person on their behalf.
Under section 1 of the Guardianship (Missing Persons) Act 2017 there are two conditions for a person to be ‘missing’:
- They must be absent from their usual place of residence and from their usual day-to-day activities; and
- Either their whereabouts are unknown, or not precise enough to enable contact, or for reasons beyond their control they are unable to make effective decisions or communicate such decisions (or both).
Under Section 1(4), a person who is detained, whether in prison or another place, is to be treated as satisfying Section 1.
Who can be appointed guardian?
The person who wishes to be appointed guardian must be able to demonstrate:
- They are 18 years of age or over or a trust corporation;
- They consent to the appointment;
- They are suitable to be appointed as a guardian. This can include their relationship with the missing person and their skills and knowledge in reference to the role requirements;
- They will act in the best interests of the missing person. Section 18 defines the missing person’s best interests and states that they must account for the views of the missing person where it is reasonably practicable and appropriate to do so; and
- That they have sufficient interest in the property and affairs of the missing person. This can include, broadly speaking, their spouse or civil partner, parent, children, siblings and a previous guardian. These have been expanded to include partners who have been in a relationship for a long time and live with the missing person, business partners (to allow them to continue the normal running of a business), and stepparents, stepsiblings and stepchildren.
A claim for a guardianship order requires the following documents to be filed:
- Claim form;
- Witness statement;
- Supporting evidence; and
- A cheque for the appropriate court fee.
The appropriate forum will either be in the Chancery Division or the Family Division of the High Court. There are a number of considerations to take into account when deciding:
- The likelihood of family related disagreements and issues arising, where the Family Division may be more appropriate.
- The court fee; currently an application to the Chancery Division costs £528 whereas in the Family Division it is £245. A fee remission may be available which will be assessed on the applicant’s means rather than the missing person’s; and
- The speed at which each division is expected to process the application, provide a hearing and decide an outcome for the application.
What to do after submitting an application
Once your application has been received and reviewed the courts will issue the claim. This will usually be accompanied by a first hearing date which is expected to be no later than 56 days after the issue date.
There are two things an applicant must do within 14 days of the issue date; notification and advertisement.
Notification means that the applicant must send notice of the application to the people with the following relationships to the missing person: spouse or civil partner, parent, child and sibling. If no one fits these categories the closest relative to the missing person, guardian or former guardian, anyone who had previously intervened or become party to this or any previous guardship proceedings or anyone considered by the applicant to have interest in the claim should be notified.
Advertising requires an advert to appear in at least one print or online newspaper which relates to the area in which the missing person was last known to live. Evidence of the advertisement must be sent to the court at least seven days prior to the first court hearing.
The Guardianship Order
The court may come to a decision after the first hearing, or several hearings may be needed depending on the complexity of the application and any disagreements between family members.
Once the guardianship order has been made the court will send multiple copies to the guardian and one to the Office of the Public Guardian. The guardian should check the order carefully for any mistakes and contact the High Court immediately if any are present.
The guardianship order will only cover decisions detailed within the order. If the guardian wishes to make any further decisions a second application to the court must be made.
Guardianship orders last for a maximum of four years and the guardian can apply again on expiration of the order with the same application process as applying initially if the subject of the application remains missing.
Of course, where a person has remained missing for at least seven years and is thought to be dead then it may be more appropriate to consider an application for a declaration of presumed death under the Presumption of Death Act 2013.