Law Reform Update: Guardianship of the Property & Affairs of Missing Persons

9 March 2017

A consultation outcome on the Guardianship of the Property & Affairs of Missing Persons was published last week by the Ministry of Justice (MOJ), with some changes to the government's position. The law will create a new legal position of a "fiduciary deputy" to handle the property and affairs of a missing person. The Bar fully supported this relatively small but significant improvement in the law in its initial consultation response but highlighted several concerns, which have now been addressed by the MOJ. 

In Bar Council Law Reform Committee's response, it highlighted that the "best interests" test, used to determine whether an applicant is a suitable guardian, may have some issues. A guardian of a missing person must act in the interests of the missing person, but our response noted that often the driver will be the family's interests, or the interests of those with commercial dealings with the missing persons. The government says that it will consider the test in detail, alongside other issues such as disputes arising out of joint guardianship. 

The government also consulted on which court should handle applications for guardianship, mentioning both the Court of Protection (COP) and the High Court as obvious candidates and expressing a preference for the latter. The Bar Council favours the COP as it regularly deals with the Office for the Public Guardian, and because the application process is unlikely to be adversarial. As stakeholder responses' were split, the government will now further consult with the judiciary and HMCTS on the issue. The consultation outcome, however, does include a more balanced approach, reflecting at least provisional acceptance of the Bar's view. 

The government proposes that a guardian can be appointed after a person has been missing for 90 days. However, the Bar Council recognises that issues with regards to dependents could rapidly escalate, and as such we called for the government to consider an interim jurisdiction. There is understandable concerned about over-hasty applications, but the government will now look at the possibility of interim measures in urgent circumstances. 

With regards to the equality impacts of the proposed legislation, the Bar Council highlighted that those with a mental disability and those from ethnic backgrounds could be subject to fraudulent applications of guardianship as a form of control. The government noted our response and will keep these observations in mind when drafting legislation and guidance.

Though the government seems keen to introduce the legislation quickly, it recognises that the creation of a legal status will likely throw up a number of related policy issues. The Bill is due to be discussed by the House of Commons on the 24 March 2017.