Guardianship Act Could Ease Grief Of Missing Persons’ Families

Whilst flying back to France from Cardiff having just completed a big money move to Cardiff City, the Argentinian striker Emiliano Sala’s plane went missing off the Guernsey coast on Monday 22nd January.

Since that time, Emiliano Sala and his pilot, David Ibbotson, have been presumed dead.

Whilst two of the plane’s seat cushions are suspected of washing up on the French coast yesterday, there is no physical remains of the plane or the bodies.

Professionals in Wills, Probate and Estate Planning already face a difficult barrier in asking people to confront their mortality and make a Will to protect their wishes and loved ones after they die.

However, what happens when the person is missing but not officially deceased?

For many families left in limbo, they are confronted with a myriad of conflicting emotions like grief, hope, anguish and anticipation. Desperate for a definitive decision that may never arrive.

According to the charity, Missing People, confused, unsure and grieving families are often subjected to an additional gluttony of paperwork and even financial ruin if they are unable to take control of the missing person’s finances.

The Presumption of Death Act, that came into legal enforcement in 2014, allows a family or personal representative to wrestle control of the missing person’s financial affairs.

However, in using this route, the family must make the definitive and agonising step of declaring their loved one to be presumed dead or declared dead. When you cling to the hope that a loved one is still alive, this option is a bitter pill to swallow.

In some cases, the authorities remain unclear on the Presumption of Death Act with some officials offering incorrect advice that could leave the bereaved feeling increasingly helpless and financially powerless. This includes advising the family to seek a death certificate after seven years of the loved one going missing; in some cases, this means obtaining a death certificate from a foreign country.

Whilst the authorities need to be fully educated on the processes that are open to the families of missing persons, there is another Bill, languishing in the Parliamentary waiting room, for approval.

The Guardianship (Missing Persons) Act would present families of missing people with access to the finances and affairs of missing relatives without being forced into testifying into the presumed death of their loved one.

Despite gaining royal assent in 2017, almost two years have slipped by and the document continues to gather dust.

A consultation paper into the Guardianship Act is currently collecting views on a range of procedural issues before it closes on February 12th. It can then make its way through Parliament.

Sarah Young, Huddersfield-based lawyer specialising in missing persons case law, said: “I constantly feel I am fighting against a bureaucracy that isn’t helping people. I have had clients who have been told by the Foreign Office they have to wait for seven years and get a death certificate from the country (in which they went missing) before they can do anything. The police sometimes say that too.”

Susannah Drury, policy director at the charity Missing People UK, said: “Lots of people do seek presumption of death through the courts when they believe the loved one is dead or there is very clear evidence that they have died.

“It is a tough and traumatic step for families to take.

“For some families it is never the right step to take. They hope and believe their loved one will return and they want a life for them to come back to.

“It is heartbreaking. And we know that families have felt forced to go through the presumption of death route (in order to take control of the finances).

“More and more families are in need of the new guardianship option. It is getting more and more urgent.”

How important will the Guardianship Act be to grieving families that still hold out hope for the safe return of their loved one?

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