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Presumption of Death and Provisions Relating to Missing Persons BillPage 10

proceeding) may be paid out of, or reimbursed from, the estate, whether or not
the appointment has been revoked or quashed.

(4) An order referred to in subsection (3) may be made on an application under
section 34 or otherwise, and for that purpose, a reference in section 34 to an
5Administrative Guardian is taken to include a reference to a person whose
appointment as an Administrative Guardian has been revoked or quashed.

23 Administrative Guardian to notify court

An Administrative Guardian must notify the court in writing without delay
when the Administrative Guardian becomes aware that—

(a) 10the represented person is alive (either in England and Wales or
elsewhere);

(b) the represented person has died; or

(c) a declaration has been made under section 1.

24 Order to remove an Administrative Guardian

(1) 15The court may, by order, remove an Administrative Guardian—

(a) on application by the person who is the subject of the Administrative
Guardianship Order; or

(b) if satisfied, on application by the Administrative Guardian or any other
person, that—

(i) 20the represented person is alive; or

(ii) the represented person is dead.

(2) The court must, by order, remove an Administrative Guardian where—

(a) a superior court, on being satisfied of the death of the represented
person, whether by direct evidence or on presumption of death, has
25made a grant of probate of the will or administration of the estate of the
represented person under the law of probate;

(b) the Probate Registrar, on being satisfied of the death of the represented
person, whether by direct evidence or on presumption of death, has
made a grant of probate of the will or administration of the estate of the
30represented person under the law of probate;

(c) any part of the estate of the represented person becomes subject to an
order under the law of probate; or

(d) a declaration of presumed death under section 1 has been made.

25 Duration of order

(1) 35Subject to section 24, an order under section 19 continues in effect for a period
not exceeding 2 years as may be specified in the order.

(2) An order under section 19 may on the application of the Administrative
Guardian be renewed once for a further period not exceeding 2 years as is
specified in the order if the court is satisfied that the matters specified in section
4019 continue to apply.

(3) Nothing in this section shall prevent a person applying for a new order in
accordance with section 16 if the previous order has expired.

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26 Application for a temporary Administrative Guardianship Order

(1) Any person may apply to the Court of Protection for a temporary
Administrative Guardianship Order appointing an Administrative Guardian
in respect of the estate of a missing person.

(2) 5An application may be made under subsection (1) whether or not an
application has been made to the court under section 16.

(3) Each person who would be entitled to notice under section 17 of an application
under section 16 is entitled to notice of the making of an application under this
section, notice of the hearing of the application and notice of any order made
10by the court in respect of the application.

27 Temporary Administrative Guardianship Order

(1) If the court is satisfied that—

(a) the person in respect of whose estate an application has been made
under section 26—

(i) 15is a missing person; and

(ii) usually resides in England or Wales;

(b) while the person is missing there is, or is likely to be, a need for a
decision in relation to the person‘s financial matters or property; and

(c) it is in the best interests of the missing person for a person to be
20appointed to administer their estate while they are missing;

the court may make a temporary order appointing any person who may be
appointed under section 20 as an Administrative Guardian.

(2) A person is a missing person for the purpose of making a temporary
Administrative Guardianship Order under subsection (1) if the court is
25satisfied that—

(a) it is not known whether the person is alive;

(b) reasonable efforts have been made to find the person; and

(c) for at least 90 days, the person has not contacted—

(i) anyone who lives at the person’s last-known home address; or

(ii) 30any relative or friend of the person with whom the person is
likely to communicate.

(3) An order may be made under this section in respect of a person who is a
missing person where the person became missing before or after the
commencement of these provisions.

(4) 35Subject to subsection (5), an Administrative Guardian may be appointed under
subsection (1) to administer all or a specified part of the estate of the missing
person.

(5) A temporary Administrative Guardianship Order—

(a) remains in effect for such period not exceeding 21 days as is specified
40in the order; and

(b) may be renewed once for a further period not exceeding 21 days.

(6) The court must hold a hearing to determine whether an Administrative
Guardian should be appointed under section 19 as soon as practicable after the
making of a temporary Administrative Guardianship Order and within 42
45days of making that order.

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28 Power of the Administrative Guardian

(1) An Administrative Guardian has the powers and duties conferred by this Act.

(2) Where a decision is made, action is taken, consent is given or thing is done by
an Administrative Guardian under an order made by the court the decision,
5action, consent or thing has effect as if it had been made, taken, given or done
by the represented person and the represented person had the legal capacity to
do so.

29 Exercise of power by Administrative Guardian

(1) An Administrative Guardian must act in the best interests of the represented
10person.

(2) For the purposes of subsection (1), an Administrative Guardian acts in the best
interests of the represented person if the Administrative Guardian only takes
any actions that the Administrative Guardian considers are necessary or
desirable for—

(a) 15the payment of the debts and engagements of, and otherwise for the
benefit of, the represented person;

(b) the maintenance and benefit of dependants of the represented person;
or

(c) the care and management of the estate of the represented person.

30 20Ancillary powers of Administrative Guardian

(1) An Administrative Guardian may on behalf of a represented person sign and
do all such things as are necessary to give effect to any power or duty vested in
the Administrative Guardian.

(2) Nothing in this Part confers on an Administrative Guardian the power to
25execute a will in the name of a represented person.

31 Powers of investment

Except as provided in section 36 or any order of the court, an Administrative
Guardian, in respect of any part of the estate of the represented person of
which the Administrative Guardian is the Administrative Guardian—

(a) 30may for such period as the Administrative Guardian thinks fit allow
any part of the estate to remain invested in the manner in which it has
been invested by the represented person;

(b) may in the case of money deposited in an authorised deposit-taking
institution re-deposit it after it becomes payable; and

(c) 35has and may exercise in relation to any part of the estate the same
powers as the Administrative Guardian would have if the
Administrative Guardian were a trustee of that part of the estate.

32 Interest of represented person in property not to be altered by sale or other
disposition of property

(1) 40A represented person and his or her heirs, executors, administrators, next of
kin, devisees, legatees and assigns have the same interest in any money or
other property arising from or received in respect of any sale, mortgage,
exchange, partition or other disposition under the powers given to an

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Administrative Guardian by an order of the court which have not been applied
under those powers as such person would have had in the property which was
the subject of the sale, mortgage, exchange, partition or disposition if no sale,
mortgage, exchange, partition or disposition had been made.

(2) 5For the purposes of this section, money arising from the compulsory
acquisition or purchase under any Act of property of a represented person is
deemed to be money arising from the sale of that property under the powers
given to an Administrative Guardian by an order of the court.

(3) An Administrative Guardian who receives money or other property under this
10section must keep a separate account and record of the money or other
property.

(4) Money received by an Administrative Guardian under this section may be
invested in any manner currently allowed for the investment of trust funds
under the law of England and Wales.

(5) 15In this section and section 35, “next of kin” in relation to a represented person
means any person who would be entitled to the property of the represented
person or to any share thereof under any law for the distribution of the
property of intestates if the represented person had died intestate.

33 Court power to open will

20The court may either before or after the death of a represented person open and
read any paper or writing which is purported or alleged to be the will of the
represented person.

34 Administrative Guardian may seek advice

(1) An Administrative Guardian may apply for the advice of the court upon any
25matter relating to the scope of the Administrative Guardianship Order or the
exercise of any power by the Administrative Guardian under the
Administrative Guardianship Order.

(2) The court may—

(a) approve or disapprove of any act proposed to be done by the
30Administrative Guardian;

(b) give such advice as it considers appropriate; and

(c) make any order it considers necessary.

(3) The court may on its own initiative direct, or give an advisory opinion to, an
Administrative Guardian concerning any matter.

(4) 35An action does not lie against an Administrative Guardian on account of an act
or thing done or omitted by the Administrative Guardian under any order or
on the advice of the court made or given under this section unless in
representing the facts to the court the Administrative Guardian has been guilty
of fraud, wilful concealment or misrepresentation.

35 40Application to the court by a creditor etc.

(1) Any person interested as a creditor, beneficiary, next of kin, guardian, close
relative, primary carer or otherwise in any estate administered by an

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Administrative Guardian may apply to the court upon any matter arising out
of the administration of the estate by the Administrative Guardian.

(2) The court may make such order in relation to the application as the
circumstances of the case may require.

36 5Power to Administrative Guardian to act until notice of discharge etc.
received

(1) Where the court knows that a person has ceased to be a represented person, the
court must without delay give notice of that fact to the Administrative
Guardian.

(2) 10Until the Administrative Guardian learns that a person has ceased to be a
represented person, an Administrative Guardian may exercise all or any of the
powers given to the Administrative Guardian by order of the court with
respect to the estate of the represented person.

(3) Upon notice being given under subsection (1), the represented person or the
15represented person’s legal personal representative (as the case may be) is
bound by and may take advantage of any act done on behalf of the represented
person by the Administrative Guardian within the powers conferred on the
Administrative Guardian by the court as if it had been done by the represented
person and the represented person had the legal capacity to do so.

37 20Accounts

(1) The court may, at the time that it appoints an Administrative Guardian under
section 16 or such later time as the court determines, appoint a person to
examine or audit the accounts of the estate of a represented person for a fee
approved by the court and paid from that estate.

(2) 25Unless the court otherwise directs, an Administrative Guardian must lodge—

(a) if the court has appointed a person under subsection (1) to examine or
audit accounts, with that person; or

(b) in any other case, with the court;

on, or as soon as practicable after, the anniversary of the appointment of the
30Administrative Guardian in each year, accounts of the administration of the
estate of a represented person providing a full and true account of the assets
and liabilities of that estate and all receipts and disbursements in respect of that
estate.

(3) The court may require an Administrative Guardian to lodge accounts at a time
35other than a time specified in subsection (2).

(4) A person appointed under subsection (1) to examine or audit accounts must
lodge with the court a report in relation to the accounts examined or audited.

(5) A report under subsection (4) may recommend the disallowance of any item in
the accounts.

(6) 40Where the court receives a report under subsection (4), the court cannot make
an order disallowing an item if the court is satisfied that the Administrative
Guardian acted in good faith and with reasonable care in the exercise of
powers conferred on the Administrative Guardian.

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(7) Where any item is disallowed by the court, the Administrative Guardian is
liable for the amount of the item disallowed.

(8) An Administrative Guardian must, in respect of each estate administered by
the Administrative Guardian, pay to a person appointed under subsection (1)
5to examine or audit accounts an amount certified by that person as being the
reasonable cost of examining or auditing the accounts.

(9) The court may upon an application by the Administrative Guardian and with
the consent of the person appointed under subsection (1) to examine or audit
accounts waive payment of the whole or part of the amount required to be paid
10under subsection (8).

38 Powers and duties in relation to represented persons

(1) Subject to and in accordance with this Part and the Administrative
Guardianship Order appointing an Administrative Guardian in each case—

(a) the Administrative Guardian has the general care and management of
15the estate of the represented person;

(b) it is the duty of the Administrative Guardian to take possession and
care of, recover, collect, preserve and administer the property and
estate of the represented person and generally to manage the affairs of
the represented person and to exercise all rights statutory or otherwise
20which the represented person might exercise if the represented person
were not missing; and

(c) the Administrative Guardian in the name and on behalf of the
represented person may generally do all acts and exercise all powers
with respect to the estate as effectually and in the same manner as the
25represented person could have done if the represented person were not
missing.

(2) Without limiting subsection (1), an Administrative Guardian may in the name
and on behalf of a represented person—

(a) collect, receive and recover income of and money due or which
30becomes due to and any compensation or damages for injury to the
estate or person of the represented person;

(b) invest any money in any security in which trustees may by law invest;

(c) demise land at a rent and on conditions as the Administrative Guardian
thinks fit for any term not exceeding 5 years or, with the consent of the
35court, for any longer term;

(d) exercise to the extent and in the manner the Administrative Guardian
thinks proper any power of leasing vested in the represented person;

(e) surrender any lease, accept any lease, accept the surrender of any lease
or renew any lease;

(f) 40with the approval of the court sell, exchange, partition or convert into
money any property;

(g) mortgage or charge any property;

(h) pay any debts and settle, adjust or compromise any demand made by
or against the estate and discharge any encumbrance on the estate;

(i) 45carry on so far as appears desirable any trade, profession or business
which the represented person carried on;

(j) agree to any alteration of the conditions of any partnership into which
any represented person has entered or to a dissolution and distribution
of the assets of the partnership;

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(k) bring and defend actions and other legal proceedings in the name of the
represented person;

(l) execute and sign deeds, instruments and other documents;

(m) complete any contract for the performance of which the represented
5person was liable, or enter into any agreement terminating liability;

(n) pay any sum for the maintenance of the spouse or civil partner of the
represented person or any child, parent or other person dependent on
the represented person and for the maintenance and education of the
children of the represented person the Administrative Guardian deems
10expedient and reasonable; and

(o) carry out all matters necessary or incidental to the performance of any
of the above-mentioned matters and apply any money from the estate
which it is necessary to apply for the purposes of this Part.

39 Action upon a person ceasing to be a represented person

(1) 15If an Administrative Guardian has received notice from the court that a
represented person has ceased to be a represented person or has died, the
Administrative Guardian must—

(a) pay or cause to be paid to that person or to that person’s personal
representative (as the case requires) all money standing to his or her
20credit with the Administrative Guardian; and

(b) deliver to that person or to that person’s personal representative (as the
case requires) all property forming part of his or her estate and any
documents relating to that estate.

(2) Any payment made under subsection (1) is subject to the satisfaction of any
25amount due to the Administrative Guardian and all costs, expenses and
liabilities incurred by the Administrative Guardian in respect of the
administration of that person’s estate.

(3) The receipt of a person who has ceased to be a represented person or of that
person’s personal representative is an absolute discharge to an Administrative
30Guardian despite any informality in the discharge or certification.

40 Represented person entitled to inspection of accounts

Any person who has ceased to be a represented person or the personal
representative of any represented person is entitled, before or after obtaining
the restoration of all or any part of the estate from an Administrative
35Guardian—

(a) to examine and inspect or cause to be examined and inspected by a
legal or other authorised agent all books, accounts, notices and other
documents in the custody of the Administrative Guardian relating to
the estate and to make or cause to be made copies or extracts;

(b) 40to have supplied to him or her or his or her legal practitioner or other
authorised agent copies of or extracts from any book, account, notice or
document; and

(c) to have given to him or her or his or her legal practitioner or other
authorised agent information respecting the estate as is reasonably
45requested and can be given by the Administrative Guardian.

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41 Effect of this Part on other legislation

(1) This Part is not intended to exclude or limit the operation of the law of probate.

(2) A person who is a represented person only because of the operation of this Part
is only a represented person for the purposes of this Part to the extent that it is
5necessary in order to give effect to this Part.

(3) A reference in any Act or regulation to a represented person is taken not to
include a person who is a represented person only because of the operation of
this Part.

Part 3 10Supplementary

42 Orders and regulations

(1) Subject to subsection (2) and paragraph 7(2) of Schedule 1, orders and
regulations made under this Act (other than orders to be made by a court under
this Act) (except an order made under section 46(2)) shall be made by a
15statutory instrument which is subject to annulment in pursuance of a
resolution of either House of Parliament.

(2) No statutory instrument made—

(a) under section 44(1) or (3) which amends, repeals, revokes or modifies
any statutory provision; or

(b) 20under section 13;

shall be made unless a draft has been laid before and approved by a resolution
of each House of Parliament.

43 Interpretation

(1) In this Act—

  • 25“prescribed”, except in section 8 and paragraph 7(1) and (3) of Schedule 1,
    means prescribed by regulations made by the Secretary of State;

  • “the Registrar General” means the Registrar General for England and
    Wales;

  • “the Register of Presumed Deaths” means the register maintained under
    30section 14(1);

  • “statutory provision” means any provision of an Act or instrument made
    under an Act;

  • “trust” means any trust which arises—

    (a)

    as a result of a declaration under section 1; or

    (b)

    35in relation to the administration or devolution of the property of
    a missing person as a result of a declaration under section 1;

  • “trustee” means a trustee, executor, administrator or any other person
    administering trust property; and

  • “variation order” has the meaning assigned to it by section 5(3).

(2) 40In sections 6 and 7, “insurer” means—

(a) a person who has permission under Part IV of the Financial Services
and Markets Act 2000 (c. 8)2000 (c. 8) to effect or carry out contracts of insurance;

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(b) a European Economic Area firm of the kind mentioned in paragraph
5(d) of Schedule 3 to that Act, which has permission under paragraph
15 of that Schedule (as a result of qualifying for authorisation under
paragraph 12 of that Schedule) to effect or carry out contracts of
5insurance; or

(c) any other person who provides for the payment of benefits on the death
of any person.

(3) The definition of “insurer” in subsection (2) must be read with—

(a) section 22 of the Financial Services and Markets Act 2000;

(b) 10any relevant order under that section; and

(c) Schedule 2 to that Act.

44 Supplementary provision

(1) The Secretary of State may by order make such transitional or transitory
provisions and savings as he or she considers appropriate in connection with
15the coming into operation of any provision of this Act.

(2) Nothing in section 14(2) or (3) restricts the power under subsection (1) to make
other transitional or transitory provisions and savings.

(3) The Secretary of State may by order make such supplementary, incidental or
consequential provision as he or she considers appropriate for the purposes of,
20in consequence of, or for giving full effect to, any provision of this Act.

(4) An order under subsection (1) or (3) may amend, repeal, revoke or otherwise
modify any statutory provision.

45 Amendments and repeals

(1) Schedule 2 has effect.

(2) 25The statutory provisions mentioned in the first column of Schedule 3 are
repealed to the extent set out in the second column.

46 Short title, commencement and extent

(1) This Act may be cited as the Presumption of Death and Provisions Relating to
Missing Persons Act 2012.

(2) 30The following provisions of this Act come into operation one month after the
day on which this Act receives Royal Assent—

(a) section 8;

(b) section 9(1);

(c) section 13;

(d) 35section 42;

(e) section 43; and

(f) section 44.

(3) The other provisions of this Act come into force on such day or days as the
Secretary of State may by order made by statutory instrument appoint.

(4) 40This Act extends to England and Wales.

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SCHEDULES

Section 15

SCHEDULE 1 Further provision about registration

Part 1 5Register of Presumed Deaths

Entries in Register of Presumed Deaths

1 (1) Where a declaration under section 1 has been made by the High Court, the
applicant must—

(a) where no appeal has been brought against the declaration during the
10time within which such an appeal may be brought; or

(b) where an appeal has been brought against the declaration, on the
conclusion of any appellate proceedings;

send a copy of the declaration and such particulars as may be prescribed to
the Registrar General.

(2) 15On receipt of a copy of a declaration in accordance with sub-paragraph (1),
the Registrar General must—

(a) make an entry in the Register of Presumed Deaths containing the
name of the missing person to whom the declaration relates and such
other particulars as may be prescribed in relation to that person’s
20presumed death;

(b) secure that each entry made in the Register of Presumed Deaths is
included in the index of the Register of Deaths; and

(c) make traceable the connection between the entry in the Register of
Presumed Deaths and the index of the Register of Deaths.

25Amendment and cancellation of entries in Register

2 (1) Where a variation order has been made by the High Court, the person who
made the application for the variation order must—

(a) where no appeal has been brought against the order, on the
expiration of the time within which such an appeal may be brought;
30or

(b) where an unsuccessful appeal has been brought against the order, on
the conclusion of any appellate proceedings;

send a copy of the order and such particulars as may be prescribed to the
Registrar General.

(2) 35On receipt of a copy of a variation order in accordance with sub-paragraph
(1), the Registrar General must—