Judicial factors: consultation

Part 2: Missing Persons

2.1 The Scottish Government launched the first National Missing Persons Framework for Scotland in May 2017. The main aims of the strategy are to prevent people from going missing and limiting the harm associated when they do.  Provision on measures outlined in this Part is not yet contained in the draft Bill in this paper.

2.2 The Framework contained an implementation plan which set out actions for a wide range of organisations including the Scottish Government. One of those actions is reviewing the administrative options for handling missing person’s estates.  The Scottish Government commitment here was to consider those options as part of the consultation on Judicial Factors.

2.3 Where a person goes missing for a long time, there can be practical implications for family members, such as having to deal with their property and financial affairs while they are missing.  

2.4 In Scotland, judicial factors can be appointed to manage an estate when a person goes missing. Such appointments are usually referred to as a Judicial Factor ‘in loco absentis’.    

2.5 The purpose of appointing a judicial factor in relation to the estate of a missing person is mainly to conserve and protect the estate until the missing person ceases to be missing or is declared dead.

The procedure to appoint a judicial factor “in loco absentis”

2.6 A judicial factor is appointed following an application to the court.   Petitions for the appointment of a judicial factor in relation to the estate of a missing person are made to the Court of Session or to a sheriff court in the Sheriffdom in which the missing person was last known to the petitioner to be resident (if the last whereabouts of the missing person are unknown, petitions can be lodged at Edinburgh Sheriff Court).

2.7 Applications would normally be made by a spouse or a relative, although they could also be made by anyone with an interest such as a creditor.  In common with other judicial factory appointments there is a requirement for the factor to: take such assets under their control; obtain caution; lodge an inventory of the estate; and lodge annual accounts for auditing by the Accountant of Court. If the missing person has previously granted a power of attorney and the attorney is willing to act then an application might not need to be made. 

The duration

2.8 In these circumstances, the appointment of a judicial factor will usually continue until a certain trigger point, usually at 7 years, which is the point at which someone may raise an action for declarator of death under the Presumption of Death (Scotland) Act 1977.  Other trigger points can be, the missing person returns, is found dead or where a court has otherwise declared them dead. 

England and Wales 

2.9 Unlike Scotland, England and Wales had no procedures in place to deal with administering or protecting missing person’s estates. 

2.10 Rather, under the Presumption of Death Act 2013, the missing person’s spouse, civil partner, parent, sibling or child is required to wait at least 7 years or provide proof that the missing person ‘is thought to have died’ before they can apply for a ‘Declaration of presumed dead’. The 7 year wait has been strongly criticised as too long a period during which families face a constant struggle to manage matters in their absence.  

2.11 Often financial and other institutions are reluctant to allow family members to cancel, for example, direct debits or mortgage payments on behalf of a missing person due to legal uncertainty.   As well as the emotional distress for the family, this also puts the missing person's financial situation at risk whilst they are missing and where there is an interdependence of finances, the family's financial position may also be placed in jeopardy.

2.12 As a direct consequence of the case of Claudia Lawrence who disappeared on her way to work at the University of York in 2009, a private member’s Bill was passed by the UK Parliament in 2017 - the Guardianship (Missing Persons) Act 2017.  This allows close relatives of people who go missing to continue to administer their financial affairs via a new form of guardianship order. 

2.13 In the past the Scottish Government has received correspondence outlining difficulties with the current process of trying to deal with a missing person’s estate.  The main criticisms were focussed on the 1977 Act and the concern that 7 years was too long a period and that the court processes involved in obtaining a declarator of death were protracted and expensive.

2.14 Concern was also expressed about not having the necessary powers to, for example, rent out the missing person’s property to cover mortgage payments. The powers given to in loco absentis factors are generally only those deemed necessary to allow them to discharge their duties, for example, looking after the missing person’s bank accounts or ensuring that owned property is properly maintained.  They can, however, apply to the courts for ‘special powers’ where for example extraordinary expenditure is needed or where the family home was to be sold.  It would be for the court to grant, dismiss or refuse any such application.

2.15 It would seem that the powers are however rarely used and we have little experience in Scotland of this type of factory. Since 1985 the Accountant of Court has had to supervise only 12 in loco absentis cases.  The last 2 cases were in 2007 and 2011 and in the case of the latter, because the factor was appointed in July and the missing person was found dead in August and the factor had not intromitted with the estate, the estate passed over to the executors and the appointment lasted only for 2 months.  It is not clear why there have been so few applications for this type of factory given that there are around 700 open cases of persons in Scotland classed as long-term missing i.e. missing for over 28 days and over the age of 18.

Question 2

Please provide any comments on the current procedure for the appointment of judicial factors in the case of a missing person. 

Specific provision on Scottish jurisdiction for appointing judicial factors to the estates of missing people

2.16 In recognition that dealing with the estate of a missing person is a particularly stressful and difficult time, we want to ensure that the process for managing the estate of a missing person is accessible and relevant and does not present any unwarranted barriers.  It would be the intention that the recommendations contained in the Commission’s Report would extend to factors in loco absentis.

2.17 We have looked at the new legislation in England and Wales (“the 2017 Act”) which came into force on 31 July 2019. The Ministry of Justice concluded a consultation^[2] earlier this year on, amongst other things, the court processes and the supervisory regime of the Public Guardian which would apply.  It was the intention of the Ministry of Justice to use standard court procedures where possible so that new procedures were only made where necessary.  That consultation sets out what the 2017 Act does and this is replicated in the box below. 

“To provide a means of resolving these problems, the Act creates a new legal status – the guardianship of the property and financial affairs of a missing person. The Act enables the court to appoint a guardian as an agent for the missing person. For an appointment to be made, someone with a sufficient interest must apply to the court. The court can hear the application if it is satisfied that there is sufficient connection between the missing person or the applicant with the court. This means that the missing person must have been domiciled* or habitually resident* in the United Kingdom for at least a year before he or she went missing; or, if their spouse or civil partner is the applicant, that he or she was so domiciled or habitually resident for at least a year before making the application. If this condition is satisfied, the court will only make an order if it considers the missing person has been missing for at least 90 days before the application (although the 90 day requirement may exceptionally be relaxed); that it is in the best interests* of the missing person to make the appointment; and, that there is a suitable person to be appointed. 

The court will decide on the evidence presented to it whether a guardian should be appointed. The court order making the appointment of the guardian will specify any particular terms and conditions that are to apply to the appointment.  Two or more people may be appointed as the guardian in respect of one missing person’s property and financial affairs and more than one guardianship order may be in force simultaneously in relation to different parts of the property and financial affairs of the missing person, but a single guardianship order can only ever relate to the property and financial affairs of one missing person.  The maximum length of an appointment is four years, but a person can be re-appointed on a new application and there is no limit on the number of times applications can be made. The court order may provide for the suspension of the appointment.  

No professional qualifications are required to be a guardian, but the position is one of great responsibility. It will require the guardian to act with the utmost integrity and may require high levels of skill in dealing with property and financial affairs.  Guardians can recover reasonable expenses incurred in relation to the performance of their duties, but can only charge for their services if authorised to do so by the terms of their appointment as set out in the court order. Once appointed, the guardian will then “stand in the shoes” of the missing person in relation to so much of his or her property and financial affairs as are included in the appointment.  The guardian will, subject to the terms on which the court makes the appointment, be able among other things to access bank accounts, stop or set up direct debits and standing orders, pay debts, authorise mortgage and insurance payments, sell or rent a property, and manage investments. The guardian may also be able to make payments to dependants of the missing person to meet ongoing expenses and other needs. The guardian must, however, act within the scope of his or her authority under the terms of the guardianship order and the Act; and must exercise the powers conferred in the best interests of the missing person.”

2.18 Acknowledging that the starting point south of the border was different to that of Scotland but on the basis that there appears to be little practical experience of appointing judicial factors ‘in loco absentis’, we have considered whether there may be some useful lessons to be learned from the 2017 Act.

2.19 In broad terms the provisions in the 2017 Act are similar to those in the Commission’s draft Bill.  For example, in terms of qualification for appointment as a guardian or factor, draft section 6 of the Commission’s Bill and section 4 of the 2017 Act cover much of the same ground.  Where section 4 goes into more detail, for example at 4(2)(d) which deals with conflict of interests, the Commission when setting out that the courts had to be satisfied of suitability noted^[3] that based on existing case law^[4], “someone with an adverse interest will not usually be appointed”; It is therefore anticipated that the courts here when contemplating the suitability of the applicant, would include the consideration of whether or not the proposed factor has a conflict of interest.

2.20 There are a few areas of difference.  Currently here in Scotland there is no qualifying period during which a factor in loco absentis cannot be appointed.  The 2017 Act provides that 90 days from the date the person went missing must have lapsed before an application can be made.   More significantly, the focus of the 2017 Act is very much on the guardian acting in the ‘best interests’ of the missing person and indeed section 18 sets out in some detail what must be considered in determining what is in the missing person’s best interests.  The duty which would be placed on a factor under the Commission’s proposals would be to carry out their functions ‘for the benefit of such persons as have an interest in the estate’.  This would appear to have a wider application than the interests solely of the missing person.  It would be helpful to have views on whether or not these differences are material and or whether any modification to the Commission’s proposals are needed in respect of their application to factors who are appointed to manage the estate of a missing person.

2.21 In addition, section 2 of the 2017 Act sets out the jurisdiction of the courts in relation to guardianship order applications.  It seems to us to be sensible to adopt a similar approach so that there is a consistent approach across Scotland, England and Wales.

2.22  As a result, in relation to applications to appoint a judicial factor to the estate of a missing person, the courts in Scotland would only have jurisdiction if:

• The missing person was domiciled in Scotland on the day before the person was first known to be missing; or
• The missing person had been habitually resident in Scotland for at least one year;
• The application is made by the person’s spouse or civil partner or cohabitee (i.e. living together as if married) and the applicant is domiciled in Scotland or has been habitually resident in Scotland for at least one year.

Question 3  

Should there be a qualifying period during which a factor in loco absentis cannot be appointed?  If so, what should that period be?

Yes 

No   

Don’t know  

If yes, how long?

Question 4

Should the duty of a judicial factor appointed in the case of a missing person be limited to acting in their best interests only?

Yes 

No   

Don’t know  

If you wish, please give reasons for your answer. 

Question 5 

Should the Scottish courts only have jurisdiction to appoint a judicial factor to an estate of a missing person if:

• The missing person was domiciled in Scotland on the day before the person was first known to be missing; or
• The missing person had been habitually resident in Scotland for at least one year;
• The application is made by the person’s spouse or civil partner or cohabitee (i.e. living together as if married) and the applicant is domiciled in Scotland or has been habitually resident in Scotland for at least one year?

Yes 

No   

Don’t know  

If you wish, please give reasons for your answer.

Question 6 

Are there any other provisions in the Guardianship (Missing Persons) Act 2017 which could be usefully replicated in any Scottish legislation?

Yes 

No   

Don’t know  

Please set out which provisions and give reasons for your answer.

2.23 It has also been raised that the term “in loco absentis” may be considered to be an old term.  A change of name may improve the accessibility and promotion of appointing a judicial factor over a missing person.

2.24 While the term is not used in the legislation, using the term “missing person” would make it quite clear the type of estate involved.  A suggested name which could be used is “Judicial Factor on a Missing Person’s estate”.

Question 7  

Should there be a change of name of “loco absentis” cases?  

Yes 

No   

Don’t know  

If you wish, please give reasons for your answer.

Question 8 

If so, what are your views on “judicial factor on a missing person’s estate”?

Yes 

No   

Don’t know  

Alternatives

2.25 Other questions in relation to the appointment of a judicial factor in the case of a missing person are discussed in Part 4 of this paper.