Los desaparecidos perdidos en el Limbo (or The Disappeared Lost in Limbo)
Last week was National Missing Person’s Week.
There are always very sad, compelling and complicated stories behind and beyond a snippet of news about someone that is missing that might happen to enter your orbit.
The Way
Whenever I hear about a missing person I think of the elderly couple the subject of the commercially successful hit song “The Way” (it was number one for seven weeks in 1998) written and performed by the Austin, Texas alternative rock outfit “Fastball”:-
https://www.youtube.com/watch?v=X5jlTlUTWfQ
The song tells the story of an elderly married couple Lela and Raymond Howard who drove off from home in Salado, Texas one day to attend a festival 15 kilometres away.
Lela (83) suffered from Alzheimer’s disease and Raymond (88) was recovering from brain surgery and was showing signs of memory loss. They never made it to the festival and were found dead at the bottom of a ravine sometime later in Arkansas 600 kilometres from where they were supposed to be. Their car had broken down but no one will ever know why they left it and started walking (or how they ended up in Arkansas in the first place).
The lyrics of the chorus are chilling “Where were they going without ever knowing the way”.
Many aren’t lucky enough to find their missing loved ones and if they do there are often many unexplained things that only add to the torture.
Los desaparecidos
Military Dictator Jorge Rafael Videla (whose notable contribution to history was being part of a Junta that murdered more than 30,000 people in Argentina in the mid-1970s) actually stated in a press conference when asked about the missing people
“They are just that ‘desaparecidos’ They are not alive, neither are they dead. They are just missing.”
‘Los desaparecidos’ literally translates to “the disappeared”.
No wonder groups like the ‘Mothers of the Plaza de Mayo’ and ‘Grandmothers of the Plaza de Mayo’ formed.
To this day, they walk around the exterior of Plaza de Mayo (which is in central Buenos Aires in front of the Presidential Palace - Casa Rosa) every Thursday at 3.30pm without fail in protest.
The Reasons
Dementia (in Australia about 250 people are diagnosed with dementia daily) or diminished capacity is often a reason people end up missing for many reasons but there are others like:-
- Foul play;
- Misadventure;
- Unforeseen (and unseen) accident (i.e. no one else is aware of the accident);
- Un-intentional disappearance (eg. falling off a yacht at sea in the middle of the night);
- Intentional disappearance; and
- Sadly, Suicide.
The Limbo
So your loved one can’t be found. You’ve done everything possible, the police are searching, you and your family and friends are at your wits end still searching but you are all coming up with nothing and now you have to face the legal realities.
The law in each state jurisdiction in Australia differs but essentially there are things can be put in place for people who lose capacity or who die so that there affairs can be put in order.
That is not the case where someone goes missing.
There is this horrible legal limbo families are left in - they cannot prove the missing person has lost capacity and they can’t prove they have in fact died. They can only prove they have disappeared.
The Banks will not allow you access to bank accounts but want mortgage payments paid on time, creditors are demanding payment, landlords aren’t being paid rent, employers want answers, super funds won’t release any information, life insurance companies don’t want to know and certainly don’t want to help and the tax man is hell hound on your trail.
There are also personal possessions (like cars and boats and tools of trade etc) to try to deal with.
And I’m not even scratching the surface.
The Hope
There may be some things that can be pieced together depending on what the missing person may have done with their legal affairs prior to going missing.
If a missing person has appointed an Attorney properly under an Enduring Power of Attorney (EPA) and the effect of the appointment is that it is “immediate” the attorneys can handle the legal and financial affairs of the missing person in the best interests of that person in terms of the EPA.
If the appointment under the EPA only takes effect on the missing person losing “capacity” in the traditional sense the position is less clear (someone relying on it - like a bank - may not accept it).
If the appointment is under a General Power of Attorney (i.e. the power does not endure if someone loses capacity) there is an argument it cannot be used at all. I would argue it could be as “incapacity” in the traditional sense cannot be shown.
If there is no EPA or General POA an application could be made to the Court (or Tribunal – in Queensland it is QCAT) for an administration order. The difficulty in Queensland is that you have to show incapacity (being “missing” does not automatically translate into “not having capacity” and the usual legal tests cannot be met).
The position is different in some states as there is specific legislation dealing with missing persons.
The law presumes that someone is alive. To rebut this presumption:-
- the family of a missing person must wait at least seven years before an application for a grant of probate or administration can be made; or
- apply to the Supreme Court for leave to swear Death. It is very difficult to obtain leave - the person applying must prove it on the balance of probabilities (the usual civil standard). The Applicant must produce evidence the person is not alive.
To put this all in perspective:-
- An EPA may help;
- In some states you can get an administration order (in some states you cannot);
- Getting leave to swear death is hard and it costs a lot.
For further information read the following article How our laws deepen the pain for families of the long-term missing published on the 06-08-2021 featuring our Partner Paul Radford.
Full PDF Version --> https://s3-ap-southeast-2.amazonaws.com/os-data/connollysuthers-com-au/documents/afr_article_06.08.2021.pdf
Officially recognising this week is a small ask that costs our government nothing but means everything to those who are affected.
Signing will take less than a minute, and make an enormous difference to those left behind. Sign the petition today.