Call to update missing person laws

The case of a woman who went missing at sea, which has turned into a messy court battle between her brother and partner, has led to a call for reform from Young.

The missing woman’s brother took legal action in the Queensland Civil and Administrative Tribunal (QCAT) to have the Public Trustee appointed as the woman’s sole Enduring Power of Attorney, but instead the Tribunal imposed a condition on the partner exercising powers under his Enduring Power of Attorney.

Young, an estate litigation lawyer, says there is a gap in Queensland law which needs to be plugged.

“This disappearance does focus attention though on Queensland’s estate laws which in effect are a grey area for people missing but not yet deemed to be deceased,” he says.

“Generally speaking, seven years need to have passed before a Court may presume that a missing person is deceased. However, not surprisingly, that is a long time to wait for the family involved and it can be very difficult for the family to manage the person’s affairs during that time.

“In the interim, Queensland legislation does not specifically address what can or should happen with a missing person’s assets or financial affairs. Victoria and New South Wales, on the other hand, have legislation allowing for the appointment of someone to manage the assets of missing persons.

About 6,500 missing persons were reported missing in Queensland in 2012-2013.

Unless the missing person has the foresight to previously appoint a power of attorney, the estate is in limbo for seven years, or until the person is found.

“Family members of missing persons, often experiencing significant pain and distress, soon come to realise that they are not legally entitled to manage their loved one’s affairs if no attorney has been appointed,” says Young.

“Like Victoria and New South Wales we need provision for an administrator to look after the assets of missing people."

Canada, England and parts of US have legislation to deal with estates of missing persons.