Legalize / United Kingdom / Public General Act

Guardianship (Missing Persons) Act 2017

Type Public General Act

Publication 2017-04-27

State In force

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Missing persons

1

(1) For the purposes of this Act, a person is “missing” if—

(a) the person is absent from his or her usual place of residence,

(b) the person is absent from his or her usual day-to-day activities, and

(2) The first condition is met if the person's whereabouts—

(a) are not known at all, or

(b) are not known with sufficient precision to enable the person to be contacted for the purposes of decisions relating to his or her property and financial affairs.

(3) The second condition is met if—

(a) the person is unable to make decisions relating to his or her property and financial affairs or to communicate such decisions with a view to their implementation (or both), and

(b) the reason for that is something beyond the person's control, other than illness, injury or lack of capacity in relation to a matter (within the meaning of the Mental Capacity Act 2005).

(4) A person who is detained, whether in a prison or another place, is to be treated for the purposes of this Act as absent from his or her usual place of residence and usual day-to-day activities.

Guardianship orders

Applying for a guardianship order

2

(1) A person may apply to the court for an order appointing a guardian in respect of some or all of a missing person's property and financial affairs (a “guardianship order”).

(2) The court has jurisdiction to hear and determine an application under this section in relation to property or financial affairs of a missing person only if—

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

(b) the person had been habitually resident in England and Wales throughout the period of one year ending with that day, or

(i) is domiciled in England and Wales on the day on which the application is made, or

(ii) has been habitually resident in England and Wales throughout the period of one year ending with that day.

(3) If a person is missing for two or more separate periods, the reference in subsection (2)(a) to the day before he or she was first known to be missing is to be read as a reference to the day before the latest period began.

Making a guardianship order

3

(1) The court may make a guardianship order on an application under section 2 if subsection (2) or (3) of this section applies (and see also sections 19 and 20).

(2) This subsection applies if the court is satisfied that—

(a) the person whose property or financial affairs are the subject of the application is missing,

(b) the person was missing throughout the period of 90 days ending with the day on which the application was made,

(c) in all the circumstances, the appointment of a guardian in respect of property or financial affairs of the missing person is in the missing person's best interests (see section 18), and

(d) there is a person who could be appointed as guardian (see the requirements in section 4(1)),

(and in this Act the condition in paragraph (b) is referred to as “the absence condition”).

(3) This subsection applies if the court is satisfied that—

(a) subsection (2) does not apply because (and only because) the absence condition is not met, but

(b) a decision is needed, or is likely to be needed, in relation to property or financial affairs of the missing person before the day on which that condition would be met,

(and in this Act the condition in paragraph (b) is referred to as “the urgency condition”).

(4) The court must send a copy of a guardianship order to the Public Guardian.

(5) The Secretary of State may by regulations made by statutory instrument amend subsection (2)(b) by increasing or reducing the period for the time being specified there.

(6) Regulations under this section may include transitional, transitory or saving provision.

(7) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

Choice of guardian

4

(1) The court may only appoint a person as a guardian in respect of property or financial affairs of a missing person if it is satisfied that the person—

(a) is an individual aged at least 18 or a trust corporation (as defined in section 68 of the Trustee Act 1925),

(b) consents to the appointment,

(d) if appointed, will act in the missing person's best interests (see section 18).

(2) For the purposes of determining whether a person (“the proposed guardian”) is suitable to act as the guardian of property or financial affairs, the court must, among other things, have regard to—

(a) the proposed guardian's relationship with the missing person;

(b) the missing person's views on the proposed guardian, so far as they are known to, or reasonably ascertainable by, the court;

(c) whether the proposed guardian has the skills and knowledge necessary to carry out the functions proposed to be conferred on the proposed guardian by the guardianship order;

(d) any conflict between the proposed guardian's interests and the missing person's interests.

(3) For the purposes of determining whether there is a conflict between the proposed guardian's interests and the missing person's interests, the court must, among other things, consider—

(a) any connection between the proposed guardian's property and financial affairs and the missing person's property and financial affairs, and

(b) how any such connection might affect the taking of decisions by the proposed guardian if appointed.

(4) There is not a conflict between the proposed guardian's interests and the missing person's interests merely because the proposed guardian—

(a) is the missing person's spouse, civil partner, parent, child, sibling or other relative,

(b) was living with the missing person immediately before that person became a missing person, or

(5) The court may make a guardianship order appointing a person as a guardian whether or not the person is proposed in the application for the order.

Guardian’s role: property and financial affairs

5

(1) A guardianship order must appoint the guardian in relation to—

(a) all of the missing person's property and financial affairs, or

(b) property or financial affairs of the missing person specified or described in the order.

(2) A guardianship order may not relate to the property and financial affairs of more than one person.

(3) A guardianship order may be made in respect of any property or financial affairs of the missing person, whether or not mentioned in the application, subject to subsection (4).

(4) A guardianship order may be made only in respect of property or financial affairs in respect of which the court is satisfied that—

(a) the conditions in section 3(2)(c) and (d) are met, and

(b) where the order is made in reliance on section 3(3), the urgency condition is met.

Guardian’s role: rights and powers etc

6

(1) A guardianship order must appoint the guardian to exercise on behalf of the missing person—

(a) all of the missing person's rights and powers in relation to the property or financial affairs to which the order relates, or

(b) such of those rights and powers as are specified or described in the order,

(but see subsections (5) to (8)).

(2) A guardianship order may—

(a) impose duties on the guardian;

(b) include conditions and restrictions.

(3) The court's powers under subsection (2) include power—

(a) to require the guardian to give the Public Guardian security for the exercise of the guardian's functions;

(b) to require the guardian to submit to the Public Guardian such reports at such times or intervals as the court may direct;

(4) The rights and powers that a guardian may be appointed to exercise include—

(a) selling, letting or mortgaging the missing person's property;

(b) making investments;

(d) recovering money owed to the missing person;

(e) discharging debts and other obligations of the missing person (whether legally enforceable or not);

(f) resigning trusteeships held by the missing person;

(g) bringing or conducting legal proceedings;

(h) making a gift out of the missing person's property.

(5) A guardianship order has effect subject to the restrictions in subsections (6) to (8).

(6) A guardian may not—

(a) execute a will for the missing person, or

(b) exercise a power vested in the missing person as a trustee in relation to another person's property.

(7) A guardian may only make a gift out of the missing person's property if the guardianship order expressly authorises the making of the gift, the making of gifts of a description which includes the gift or the making of gifts generally.

(8) Subsection (7) does not apply in relation to a gift made for the maintenance of, or otherwise for the benefit of, a dependant of the missing person.

(9) “Dependant”, in relation to a missing person, means an individual who, if the missing person were not missing, would reasonably rely on the missing person to provide for his or her maintenance.

Period of guardianship

7

(1) A guardian is appointed for the period specified in the guardianship order.

(2) The period specified in a guardianship order must end before the end of the period of 4 years beginning with the day on which the order is made.

(3) Subsections (1) and (2) do not prevent the court from making further guardianship orders in respect of some or all of the missing person's property and financial affairs, including orders reappointing a person as a guardian.

Guardians

Guardians and effect of guardianship order

8

(1) A guardian must act in what the guardian reasonably believes to be the missing person's best interests (see section 18).

(2) A guardian is to be treated as the missing person's agent with the authority conferred by the guardianship order and this Act.

(3) Before taking a decision in relation to which it would be reasonable to expect the missing person to consult a particular person, the guardian must consult that person unless it is not reasonably practicable to do so.

(4) A guardianship order does not affect any rights, powers or other interests of third parties in relation to the missing person's property or financial affairs.

Expenses, remuneration and records

9

(1) A guardian is entitled to be reimbursed out of the missing person's property for reasonable expenses incurred in connection with the exercise of functions as a guardian.

(2) The court may direct that a guardian is entitled to remuneration payable out of the missing person's property for exercising functions as a guardian.

(3) A guardian must—

(a) keep records of the exercise of functions as a guardian, including accounts relating to the exercise of those functions, and

(b) on ceasing to be a guardian, give a copy of the records to such persons as the court directs.

(4) The court may, on an application, order a person to provide the applicant with accounts or other information relating to the person's exercise of functions as a guardian in the form and manner specified in the order.

(5) When giving a direction under subsection (3) or considering an application under subsection (4), the court must have regard to—

(a) the need to keep the missing person's affairs confidential, and

(b) the need to impose only such requirements as are reasonable in all the circumstances,

(and, regarding applications, see also sections 19 and 20).

(6) Directions under subsection (3) and orders under subsection (4) may include conditions and restrictions.

Directions by the court to guardians

10

(1) The court may give a direction to a guardian about—

(a) whether or how to act in a particular case, or

(b) the scope of the guardian's authority under the guardianship order and this Act.

(2) The court may do so on an application or without an application being made (and see sections 19 and 20).

Actions outside guardian’s authority etc

11

(1) The court may make a declaration—

(a) that action taken by a guardian, when purporting to exercise functions as a guardian, was within or outside the scope of the guardian's authority under the guardianship order and this Act, or

(b) that a guardian performed or failed to perform a duty under the guardianship order, this Act or regulations under section 58 of the Mental Capacity Act 2005 or a duty owed to the missing person under a rule of law.

(2) It may do so on an application or without an application being made (and see sections 19 and 20).

(3) If the court makes a declaration under subsection (1) that a guardian acted outside the scope of the guardian's authority or failed to perform a duty as described in that subsection, it may—

(a) make an order disallowing expenses incurred by the guardian or remuneration to which the guardian would otherwise be entitled;

(b) make an order requiring the guardian to make a payment of an amount determined by the court to the missing person or the missing person's estate;

(c) make such other order as the court considers appropriate for the purpose of compensating the missing person or the missing person's estate for any loss resulting from the action or failure.

(4) Subsection (3) does not prevent the court from exercising powers available to it otherwise than by virtue of that subsection.

(5) If the court makes a declaration under subsection (1), or otherwise determines, that a guardian acted outside the scope of the guardian's authority or failed to perform a duty as described in that subsection but—

(a) the guardian shows that the guardian behaved honestly and reasonably in doing so, and

(b) the court considers that, having regard to all the circumstances, the guardian ought to be relieved of personal liability,

the court may relieve the guardian, either entirely or partly, of personal liability in respect of the action or failure.

(6) In considering whether to relieve a guardian of personal liability, the court must have regard to—

(a) the care and skill that it is reasonable to expect the guardian to have exercised in the circumstances, and

(b) in the case of a person acting as a guardian in the course of a business or profession, any special knowledge or experience that it is reasonable to expect of a person acting in the course of that kind of business or profession.

Variation and revocation of guardianship orders

Variation of guardianship order

12

(1) The court may make an order varying a guardianship order, on an application or without an application being made.

(2) It may do so only if it is satisfied that—

(a) the person whose property or financial affairs are the subject of the guardianship order is missing,

(b) the absence condition or the urgency condition is met, and

(and see also sections 19 and 20).

(3) The power under subsection (1) includes power to—

(a) appoint a different person to be the guardian;

(b) add or remove property or financial affairs, subject to subsection (4);

(d) alter the period for which the guardian is appointed, subject to subsection (5);

(e) do anything else that the court could do on making a guardianship order.

(4) Where the court varies a guardianship order in circumstances in which the urgency condition (but not the absence condition) is met, it may only make provision in respect of property or financial affairs in respect of which it is satisfied that the urgency condition is met.

(5) The court may not vary a guardianship order so that the period for which the guardian is appointed ends after the last day of the 4 year period specified in section 7(2).

(6) The court must send a copy of an order varying a guardianship order to the Public Guardian.

Revocation of guardianship order

13

(1) The court may make an order revoking a guardianship order, on an application or without an application being made.

(2) If a guardian has reasonable grounds to believe that the person whose property or financial affairs are the subject of the guardianship order is no longer missing, the guardian must apply to the court as soon as reasonably practicable for the revocation of the order.

(3) The court may revoke a guardianship order only if it is satisfied that—

(a) the person whose property or financial affairs are the subject of the guardianship order is no longer missing, or

(b) in all the circumstances, revocation is in the missing person's best interests (see section 18),

(and see also sections 19 and 20).

(4) The court must send a copy of an order revoking a guardianship order to the Public Guardian.

Automatic revocation

14

(1) A guardianship order is revoked—

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