The High Court was faced with an unusual case, entailing many twists and turns, and had to decide whether to grant the mother of a 50-year-old man guardianship under the Guardianship (Missing Persons) Act 2017 (G(MP)A 2017).
Background:
SB’s mother, the claimant, seeks a guardianship order appointing her as the guardian of her son, SB, with respect to all his property and financial affairs. SB owns a property – subject to a trust and a mortgage. The flat is rented, although the rent does not cover the mortgage.
SB suffers from mental ill health and has received a formal diagnosis of paranoid schizophrenia. He has been supported by adult social care and has suffered periodic relapses.
SB has not been in touch with his mother for quite some time, which is ‘out of character’. He has not worked since 2022 and is a regular church-goer in his locality. She last saw SB on the 22nd of September 2023. He gave up some of his possessions to the vicar of his local church on the 18th of September and the Mental Health Services in Essex spoke with SB on the 26th of September 2023. His mother reported him missing on or about the 26th of October 2023.
According to the evidence retrieved, he was seen in Lerwick on the 25th of September 2023 and thereafter took a flight to Dublin on the 3rd of October. On the 8th of October 2023, SB sent an email to a friend in which he stated that he had crossed the Bay of Biscay to Bilbao. His laptop was used in Germany on or around the 12th of October 2023 and there have since been bank transactions in Italy, the last being on the 17th of October 2023. There is no activity on his bank account after that date, nor is there any trace of SB.
The issue is that SB has left his “financial affairs in something of a mess, and the claimant needs authority to deal with them”. He has a credit card debt delinquency and debt recovery firms have been involved but are not prepared to deal with the claimant.
Decision:
The application was successful, with the Court granting guardianship for two years (which is potentially extendable) to manage SB’s financial affairs. The Court came to this conclusion based on the evidence that the claimant has sufficient interest in relation to SB's property and/or financial affairs to make this application and to be appointed as guardian according to Section 4 of G(MP)A 2017. It was also reasonable to make such an order based on the risk of repossession of the home, the sizeable debts accrued, and the dismal state of his finances.
It was also clear that SB felt under the definition of a missing person according to Sections 1 and 2 G(MP)A 2017. “Despite the considerable efforts made by the police, and also by Kevin Bartram, and the family, SB's whereabouts are truly unknown.”
She also followed the rules by properly advertising her application in a local newspaper, thus complying with Section 20(1)(b) G(MP)A 2017. She also complied with the request to identify, “by account number(s) and name(s), all bank and credit card accounts in SB's name” which she did “comprehensively, timeously, and conscientiously”.
The Court did not require any ‘security’ for the exercise of the Guardian’s functions as found in Section 6(3) G(MP)A 2017 based on the fact that the “claimant's modest financial circumstances, and to the extent to which she has already made considerable financial outlay to settle liabilities incurred by SB in his absence”. She is, however, required to pay £250 for the provision of police materials and submit reports to the Office of the Public Guardian.
Implications:
This case highlights the importance of following the rules, even when the person is unrepresented as the claimant. The Judge was convinced by the evidence and that the claimant had sufficient interest in relation to her son’s property and/or financial affairs. The real risk of repossession and the size of the debts also influenced the Judge.
The Court still took into account the defendant’s best interests and welfare, even in his absence. It is always a difficult situation when a loved one has disappeared, but the steps the mother took in this case are the right ones to avoid the defendant losing all of his assets.