Guardianship Orders: A Cut out and Keep Guide based on One I Made Earlier

Introduction

The Guardianship (Missing Persons) Act 2017 (“the Act”) came into force three and half years ago on 31 July 2019.  Informally known as ‘Claudia’s Law’ after Claudia Lawrence who disappeared in 2009, the purpose of the Act is to empower the court to appoint a guardian to deal with the property and financial affairs of people who have gone missing. 

Despite the acknowledged need for such an Act, and the length of time for which the remedy has now been available, there are no reported cases of a court appointing a guardian.

I would like to be able to say “not until now”, but the nature of the hearing I had in December 2022, during which a DJ in the Business and Property Courts in Leeds granted my client a guardianship order did not lend itself to a reported judgment.  So I have taken it upon myself to provide a short overview of our application, followed by a brief “cut out and keep” guide to guardianship orders, based upon “one [a DJ in the Leeds BPC] made earlier” with the intention that you can keep this article in the magical cloud/internet storage/e-mail server and pull it out if you’re faced with a situation where you need to consider applying for such an order.

The Order made in Leeds

The background to my case was that the applicant had been contacted by professionals searching for relatives of the owner of a derelict property which was causing problems for its neighbours.  The identity of the owner was known, but he had not been seen or heard of for many years.  The applicant for the guardianship order was the brother of the owner.

Enquiries carried out by the applicant revealed a last known address for the missing person in 2017/18, from where it appears that the missing person was admitted to hospital, never to be seen again save for an unconfirmed sighting in the hospital around this time.  All other enquiries drew a blank, but equally no death certificate could be found.

Given that only four years had elapsed from when the missing person had last been seen, and there was no evidence to show that it was thought that the missing person had died, it was not open to the applicant to apply for a declaration of presumed death under the Presumption of Death Act 2013, so instead we applied for a guardianship order so that the applicant (and his wife) could deal with the derelict property.

One of the significant difficulties faced by the applicant was that he had not personally been in touch with his brother for over 15 years, and the missing person was a gentleman with few friends, no regular job, and no other family.  It was therefore necessary to track down and then obtain witness statements from the missing person’s friends to try and piece together a picture of the missing person’s life in 2017/18 so that it could be shown that the missing person was indeed ‘absent from his usual place of residence and usual day to day activities’ as required by s.1 of the Act.  There is no assistance as to the necessary time period for “usual” within the Act, but as the applicant could not find any trace of the missing person after 2018, we had to focus upon his ‘usual’ activities at that time.

CPR 57.27 makes it clear that the first hearing of an application for a guardianship order is usually a directions hearing.  In our case there had been a problem with the advertisement which needs to be placed in a ‘public news media’ no later than 14 days after notification of the date of the first hearing, and therefore an order was sought (and granted) to extend the time to advertise the claim.  However, even given the short period of advertisement, the remote hearing was attended by a member of the public; an academic with an interest in the derelict property due to its historical significance as a synagogue dating back to 1892.

Directions were given as to the filing of further evidence, and the final hearing was listed in person with the proposed guardians (the applicant and his wife) ordered to attend.  The order was subsequently granted with the court expressing concern that without the order sought the property was, and would remain,  uninsured, and the authority given to the guardians included permission to sell the property and to pay the legal costs of the application from the missing person’s estate.

Cut Out and Keep

The law relating to application for a guardianship order (“an order”) is set out within the Act and guidance for guardians and persons making applications under the Act is provided by the Guardianship (Missing Persons) Act 2017 Code of Practice (“the Code”), the most recent edition of which is dated June 2019.  The relevant section of the CPR is CPR 57.

Jurisdiction and Standing

Under s.2 of the Act, the court only has jurisdiction to hear and determine an application for an order if either:

• the missing person was
• domiciled in England and Wales on the day before (s)he was first known to be missing, or

• had been habitually resident in England and Wales throughout the period of one year ending on the day before (s)he was first known to be missing,

Or

• the application is made by the missing person’s spouse or civil partner and the applicant is:
• domiciled in England and Wales on the day on which the application is made, or
• has been habitually resident in England and Wales throughout the period of one year ending on the day on which the application is made.

Pursuant to s.19 of the Act, any applicant for an order must have a sufficient interest in the missing person’s property or financial affairs.  The persons with automatic sufficient interest include the missing person’s spouse/civil partner, parent, child, or sibling.

Under s.20 of the Act any application for an order must be advertised in accordance with the rules of court and s.20(3) provides that the court must refuse to hear an application if it knows that the advertising requirement has not been met.  CPR 57.29 provides that the advert must be in the prescribed form, and must be advertised ‘within 14 days of notification of the date of the first hearing’. 

In the event that the advert is late, relief from sanctions can be obtained via CPR 3.1(2)(a) – power of the court to extend or shorten the time for compliance with any rule or practice direction.

Criteria to be Satisfied to Make an Order

Under s.3 of the Act, the court can make an order if satisfied that:

‘Missing’

Under s.1 of the Act, a person is “missing” if he is absent from his usual place of residence, is absent from his usual day to day activities, and his whereabouts are either completely unknown or are not known with sufficient precision to enable that person to be contacted for the purposes of decisions relating to his property or financial affairs.

Paragraph 4.4 of the code explains that the typical scenario for a case under the Act is “where a person has simply disappeared without explanation”. 

Best Interests to make an Order

s.18 of the Act provides that when determining what is in the missing person’s best interests, the court must consider all the relevant circumstances of which the court is aware, and must consider, so far as is reasonably ascertainable—

(a) any relevant wishes and feelings expressed by the missing person at any time,

(b) the beliefs and values that would be likely to influence the missing person, and

(c) any other factors that the missing person would be likely to consider.

The court must take into account the views of any persons of whom the court is aware with a relevant interest in relation to the missing person’s property or financial affairs, where it is reasonably practicable and appropriate to do so, and must consider the consequences of taking a proposed action.  However, the court is not required to decide any matter by reference to the decision the missing person is likely to have taken, or to consider any question as to whether or when the missing person might cease to be missing.

Appointment of a Guardian

The criteria of eligibility to be appointed a guardian is set out at s.4 of the Act. 

Under s.16 of the Act, the court may appoint two or more guardians. 

The Terms of an Order

Pursuant to s.5 of the Act an order must appoint a guardian in relation to all of the missing person’s property and financial affairs or such property or affairs as is specified or described in the order. 

Under s.6 of the Act an order may impose duties upon a guardian and/or include conditions and restrictions.  Under s.10 the court may give directions to the guardian about how to act and/or the scope of the guardian’s power.  Under s.6(4), a guardian may be given the power to sell property.

Under s.7 of the Act, the maximum period of an order is 4 years.  An order can be varied or revoked at any time (ss. 12 and 13).