PROPOSALS TO deal with immediate practical problems that face families when a loved one goes missing and is not found, are set out by the Law Reform Commission in a consultation paper today.
Following discussions with representatives of missing people, the commission concluded that there is a need to have a statutory framework to deal with problems for family members, particularly allowing access to a missing person’s bank account in order to pay bills.
It provisionally recommends that legislation should be enacted to allow the family left behind to take out a limited grant of administration of the missing person’s estate (through the Probate Office of the High Court) for two years, which could be extended for a further two. This would allow the family to pay bills or, for example, renew car insurance.
Between 7,000 and 8,000 people are reported missing every year in Ireland, almost 20 every day. Most of these turn up within a short time. According to the most recent figures from the Garda Missing Persons Bureau, between 2003 and 2010 53,915 people were reported missing and, of these, 381 are still missing.
When people go missing the grief of families is compounded by the uncertainty of not knowing what has happened to them, which can be combined with a tangle of legal problems.
Under current law there is a presumption that a missing person is alive for up to seven years and a presumption of death then applies. This presumption is rebuttable by evidence. But the law is limited because it only allows family members to apply to the High Court to have the estate of the missing persons administered.
In rare cases an inquest has been held involving a missing person, which can lead to a coroner’s declaration of death, allowing the family to obtain a death certificate. This happened earlier this year in the inquest into Alice Clifford, who went missing from a hospital in 1979 aged 57.
The commission recommends reform of the law on presumed death so that families can deal, as far as possible in the least expensive way, with the emotional trauma. This would include amending the legislation on coroners to make it clear that families of missing persons may apply to have a coroner’s inquest and to have a declaration of presumed death in cases where death is almost certain.
In cases where death is highly probable, the commission recommends that the family can apply to the High Court. This court would not only provide for the administration of the missing person’s estate but also make a presumption of death order.
In the context of Northern Ireland missing persons included “the Disappeared”, a group of 17 people who were presumed to have been killed but whose bodies had not been found. The Independent Commission for the Location of Victims’ Remains, established after the 1998 Good Friday Agreement, has located 10 bodies, so that seven of “the Disappeared” remain missing.
In 2009 the Northern Ireland Assembly passed the Presumption of Death (Northern Ireland) Act 2009 which allows relatives to apply to court for a presumption of death order. The commission recommends that the law in this State be based on a similar legal framework. The consultation paper also makes recommendations to deal with the rare situations where a missing person who has been declared dead is alive and returns. It makes recommendations that would allow the person to have property returned (subject to any irreversible orders that have been made in the meantime).
Problems can also arise if the spouse or partner of a missing person remarries or enters a civil partnership. Under current law these are invalid if the missing person turns up. The commission invites submissions on the status of these relationships.