This summer saw the introduction of ‘Claudia’s Law’.
Named after Claudia Lawrence who went missing in York in 2009, the much campaigned for new legislation has been hailed as hugely significant for those coping with the disappearance of a loved one.
The emotional distress that families suffer has long been aggravated by difficulties in dealing with some of the practicalities. A missing person’s affairs are treated by banks and utility companies, for example, as strictly personal to him or her. Access has been denied to anyone not named on a policy or account, regardless of the situation. So husbands, wives, parents, children have been unable to take over the handling of the missing person’s mortgage, their gas bills, their mobile phone account.
We have advised many people in that position, and we’ve seen just how difficult it has been for normal affairs to be taken care of. In one sense, that is as it should be; organisations have serious data protection responsibilities. But it has created a situation that has proved immensely frustrating – often traumatic – for those trying to cope when a family member has disappeared.
Claudia’s Law (or, to give it its full title, The Guardianship (Missing Persons) Act 2017) addresses that problem head-on. It introduces the idea of a ‘guardian’ – someone who is authorised to exercise certain powers in the best interests of a missing person. These include paying debts, cancelling direct debits, and selling their property. It’s essentially managing that person’s interests and financial affairs on their behalf.
Pre-Claudia’s Law, that could only happen if the missing person had been declared deceased. Without proof that they had died (a situation in which many families of missing people find themselves) a declaration of presumed death could only be applied for once the person had been missing for seven years. That was a significant period of limbo, which only served to heighten the stresses and strains on family members.
Under the new law, however, a guardianship order can be applied for once a person has been missing for 90 days. Becoming a guardian enables someone to take over the management of the missing person’s affairs without having to have established that they have died.
‘Missing’ for these purposes means that the person is not at their home, and he or she is not doing the usual day-to-day things (going to work, for example). Also, either it hasn’t been possible to make contact with them because it is not known where they are, or the person can’t (for reasons that are beyond their control, but not because of mental incapacity, illness or inury) make or communicate decisions about their own financial affairs. Interestingly, that latter scenario covers people who are in prison, even though they might not ordinarily be considered to be ‘missing’.
More than one person aged 18 or over can be an appointed guardian, and for a term of up to four years. And there are controls in place to make sure that guardians carry out their duties properly and that they exercise reasonable care and skill; the Office of the Public Guardian oversees guardians’ activities, as well as imposing specific duties and restrictions on what they do.
Support is at hand, too, from lawyers like us who are here to advise guardians, helping them take the right steps and make the right decisions.
Since Claudia’s Law came into force on 31 July this year, we have already seen a positive impact on families that are in the midst of incredibly difficult personal situations. Knowing that there is a clear process available to them that will at least ease the administrative burdens can be hugely comforting. It takes away some of the pressures. And it enables those close to the missing person to put in place arrangements that keep affairs in order – something that could prove vital, particularly if the best should happen and their missing loved one returns.