The Government has announced its intention to make changes to help families left in limbo when a relative goes missing. Aside from the obvious trauma and heartache a family go through when a loved one goes missing, there are also some legal and financial issues that need to be addressed.
WHAT IS THE CURRENT SITUATION?
As it stands currently, a death certificate cannot be issued for a missing person. This means that life assurance policies cannot be processed and no decision or action can be taken in respect of any property or assets of the person’s estate.
What the Government is now proposing, is that a family can apply for a death certificate in circumstances where the length of time a person has been missing, would reasonably indicate that the missing person has died.
As it stands currently, regardless of any evidence there may be to indicate that the person has in fact passed away, there is no legal procedure to allow for their estate to be managed.
Why People Go Missing and Scope of the Report
Persons from all ages and walks of life go missing in many different circumstances and for different reasons. Sadly, young persons in the care of the Health Service Executive (HSE) account for more than 40% of all missing persons reports filed with the Garda Síochána, but represent only 8% of persons reported missing. The reasons why children go missing are quite different from those involving adults; aside from those who come to the attention of the HSE, children go missing primarily because of abduction, whether by family members or others. The Commission is also conscious that where children go missing this gives rise to specific issues for those left behind, including how to deal with the person who has abducted the child. Such legal issues are outside the scope of this project, which deals with the civil law aspects of missing persons only.
By contrast with children, adults who go missing sometimes do so voluntarily: they may simply wish to break contact with family or friends, which can sometimes be connected with personal or emotional reasons. Another reason is financial difficulties such as personal debt, and the missing person may consider that a sudden disappearance will facilitate leaving the debt behind. Another small group of people go missing due to memory loss sustained in a fall or traffic accident: some are located through established missing persons bureaus or through media coverage.
In other instances, the circumstances of the person’s disappearance indicate that he or she has committed suicide but the body has not been found. There are of course situations where individuals may choose to fake suicide, in an attempt to commit fraud. This was the position in the disappearance in 2002 of Englishman John Darwin. Such examples pose clear difficulties for those left behind, or for an insurance company that must decide whether to make a payment under the life policy. In some instances there is a need to determine whether a missing person has committed suicide or whether the circumstances indicate an attempt to defraud. These are high-profile but unusual cases. For example, in Scotland there are on average four to five presumption of death orders made each year since the enactment of the Presumption of Death (Scotland) Act 1977, that is, about 150 such orders in total, but only one person who has been declared presumed dead has, in fact, been found alive.
Another group of missing adults are those who disappear where the circumstances indicate they have been abducted and killed. In Ireland, during the violence associated with Northern Ireland between the 1970s and late 1990s, a number of people known as “the Disappeared” were abducted, killed and buried in unmarked graves by paramilitary organisations operating at the time. While the number of persons involved is small, the Commission acknowledges that this group of missing persons merit specific recognition in any reform proposals.
This Report is primarily concerned with missing adults because these cases are more likely to raise specific issues that require civil law resolution. This includes questions as how to deal with a missing person’s bank accounts or investments; whether payment should be made under a life insurance policy; whether those left behind may apply for administration of the missing person’s affairs; the civil status of the missing person; whether his or her assets are to be distributed as if he or she were dead; and the civil status of those left behind and for example, whether they are free to remarry or enter into a civil partnership.
Impact on Those Left Behind and Limits of Current Law
Regardless of the circumstances of a disappearance or the period of absence of the missing person, the impact on those left behind, family members in particular, cannot be understated. As the disappearance of a person is often unanticipated and unexpected, the emotional trauma caused by the disappearance can be devastating for those left behind.
Eileen McGowan from Lynch Solicitors says, “The current position leaves families with no legal status to deal with the missing persons assets, the new legislation will provide a mechanism allowing families to move on in both an emotional and a practical level thus allowing them to deal with and distribute the missing persons estate either by will or intestacy depending on each individual situation”.
The material contained in this blog is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.