The Absentees Act: Administering the Assets of Missing Persons

March 7, 2017 Umair Estate & Trust, General Interest, In the News, News & Events, Power of Attorney Tags: , , , 0 Comments

Last week, the news of the location of two Alberta sisters who had been missing for more than thirty years made headlines across the country.

Anna and Kym Hakze, originally from Lethbridge, Alberta, were last seen in the mid-1980s and last heard from in 1993. The sisters were formally reported as missing in 2003.

The case for the search for the sisters went cold, and local police went as far as submitting the family’s DNA to detectives during the investigation of convicted serial killer Robert Pickton in British Columbia. As reported on CBC News, a 1984 newspaper clipping and a tip from the public ultimately provided a breakthrough and helped police locate the sisters’ whereabouts.

Who administers a missing person’s property?

The story of the Hakze sisters is particularly newsworthy because of how uncommon it is for a missing person to be found after such a significant length of time. In a press release issued by the Lethbridge Police Service, Staff Sergeant Scott Woods noted, “After so many years it’s very unusual for a case like this to end with good news.”

Unfortunately, many families of missing persons are only left with unanswered questions. In addition, the missing person’s assets may be left unmanaged and unadministered, which can be particularly problematic if the person has creditors or dependants who require immediate access to these funds.

In Ontario, the Absentees Act creates a legal mechanism for a missing person’s affairs to be put under the management of a committee.

The “due and satisfactory inquiry” requirement

The Act provides the Superior Court of Justice to declare a person to be an absentee, if it is shown that “due and satisfactory inquiry” has been made regarding their whereabouts. The Court also has the power to direct such further inquiries to be made and proceedings to be taken as the Court considers expedient before an order is made.

It should be noted that a simple missing person report prepared by the police may be insufficient to justify a declaration under the Absentees Act. Applicants must be prepared to demonstrate that they have conducted reasonable, independent inquiries into the missing person’s whereabouts.

An application under the Absentees Act can be made by the Attorney General; any one or more of the missing person’s next of kin; the missing person’s married or common law spouse; a creditor; or any other person.

Appointment of a committee

If the Court is satisfied that there is sufficient evidence to declare the missing person to be an absentee, section 4 of the Act also empowers the Court to appoint a committee for the custody, due care and management of the absentee’s property. A trust corporation may be appointed as such a committee, with or without other persons.

Where such a committee is appointed, section 6 of the Act states that the powers and duties of the Court and the committee are the same as the powers and duties of the Court and of a guardian of property under the Substitute Decisions Act, with necessary modifications. Thus, the Absentees Act imports the requirements that apply to the management of the property of incapable persons in Ontario.

The Absentees Act provides a useful remedy for families of missing persons and other interested parties. Later this week, I will be blogging about the Declarations of Death Act, 2002, and the circumstances in which a Court will declare a person to be dead.

Thank you for reading,

Umair Abdul Qadir

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