What is Claudia's law?

What is The Guardianship (Missing Persons) Act 2017 and what powers does it give a guardian? Linda Cummins of GWlegal explains what you need to know about Claudia’s law.

What is The Guardianship (Missing Persons) Act 2017?

Claudia’s law is the unofficial name given to the legislation officially known as the Guardianship (Missing Persons) Act 2017 which came into force on 31 July 2019. It was named after 35-year-old Claudia Lawrence, a chef at York University who sadly went missing in 2009.

Her father Peter Lawrence OBE, with MP Kevin Hollinrake and the charity Missing People, pressed for a change in the law to enable the families of loved ones who had gone missing to be able to deal with the property and financial affairs of their missing family member sooner than having to wait for the full period of seven years to pass before a ‘presumption of death’ was declared, as required by the Presumption of Death Act 2013.

Having to wait seven years and being unable to do anything in that time to manage the financial and administrative affairs of the missing person was regarded as an extreme emotional burden on families. Missing persons families were having to endure the stress of the likes of insolvency applications, mortgage repossessions and creditors while having to cope with the day to day despair of a missing loved one.

What are a guardian’s powers after Claudia’s law?

Claudia’s law allows a guardian to be appointed after 90 days or more of person being missing. The guardian now has the power to:

contact the missing persons bank and to stop direct debits etc
pay outstanding bills
manage the persons outgoings for the family they had been supporting
sell the property of the missing person
make gifts
enter into deeds on behalf of the missing person

The guardian can continue to manage the missing persons affairs for a further four years and possibly longer if they wish to and if the Office of the Public Guardian agrees.

The person who is applying to be appointed as guardian for the missing person would need to apply to the Chancery or Family division of the High Court for the order to be made. The applicant must provide suitable evidence in support of the individual having been missing for at least 90 days and provide a witness statement as to why it is in the best interests of the missing person for the court to make such an order

What are the potential issues with Claudia’s law?

Generally, two questions are commonly raised when it comes to Claudia’s law:

How can it be known that the actions taken by the guardian reflect the actions or intentions the missing person would have taken, especially if they had not left a will or there is no other evidence to indicate what they would have wanted to happen to their assets?
Is 90 days a long enough period to wait until action is taken?

The law does go a long way to address these concerns. Under this legislation, the central focus is what is in the missing person’s best interests before any order will be granted. Many factors are carefully considered by the court before an order is made and decisions are made, including:

the relationship of the applicant guardian to the missing person
the suitability of the guardian to carry out the role
whether there is any conflict of interest between the guardian and the missing person

Whilst the guardian is able to make a subjective decision as to what they believe to be in the best interests of the missing person, neither the court nor the guardian is expected to make any decision based on what the missing person would have done or indeed when and if they may ever return. The decisions being made are balanced by the court as to what is in that person’s best interests.

The court can also revoke any order made, with or without an application being made, if it is reasonably believed that the person is no longer missing or that it is no longer in the person’s best interests for the order to apply. The guardian must apply for revocation in the circumstances where they believe the person is no longer missing.

Other concerns

Since the introduction of the Mental Capacity Act in 2005 the case load of the Court of Protection has increased, placing further pressure on an already highly demanded service.

A National Crime Agency report in 2016-17 showed that tens of thousands of people (nearly 180,000) go missing every year, and not all incidents are reported. According to Missing People organisation, in 2019 over 5000 people were considered to be ‘long term missing individuals ‘having been missing for over 12 months.’ In the light of Claudia’s law, it is anticipated that over 250 applications for orders may be submitted which, due to the already pressured system, could result in delays in granting the orders.

The legislation also only applies to England and Wales, so there is no jurisdiction within other countries such as Scotland or Ireland. This could add to complications, stress for families and delays in trying to deal with the matters relating to their loved one.

Summary

Claudia’s law legislation provides the family with an ability to deal with matters in the near future and avoid the stress and turmoil of having to wait years in limbo. They are also relieved of the extremely emotionally difficult decision of declaring whether their loved one is deemed not to be coming back.

It is with extreme sadness we note that Peter Lawrence passed away this earlier this month. Our sincere thoughts and condolences are with his family at this time.

Linda Cummins GWlegal