Loved ones unable to access finances and manage properties and other assets as estate stays legally tied to individuals affected , says lawyer
PETALING JAYA: When a breadwinner goes missing, his family can lose access to the main source of income while the person’s properties, bank accounts and other assets stay legally tied to him, said a lawyer in the context of the families of 55 Malaysians still missing after the Aug 26 floods in Nepal.
Malaysia Solidarity: Families in Hope spokesman Dr Manivannan Rethinam said in a statement on Sept 29 that the next of kin of the missing Malaysians had asked the government for a special mechanism, such as a moratorium to defer housing, vehicle loan instalments, insurance premiums and other ongoing commitments until their legal status is settled.
READ MORE: Nepal agrees to expedite verification of 55 Malaysians still unaccounted for
He said requests for an urgent meeting with the Attorney-General’s Chambers and Bank Negara Malaysia, made before and during a meeting with the Foreign Ministry on Sept 27 had drawn no response so far.
He thanked the government and agencies for their search-and-rescue efforts and coordinating with Nepalese and Chinese authorities.
The ministry had said that Nepal’s reported legal measures for people whose status is undetermined, including those of foreigners, remain subject to its domestic legal processes, and have yet to take effect.
The disaster, which was triggered by ice and rock avalanches in the upper catchment of the Lhende Khola in Tibet, has killed more than 1,450 people, with thousands still unaccounted for.
Lawyer Kokila Vaani Vadiveloo said the problem could become particularly severe when the missing person is the family’s sole breadwinner, as spouses and children could suddenly struggle to meet expenses such as food, housing and education.
“This is, in my view, is one of the biggest gaps in the current system.”
She said a missing person’s assets do not automatically pass to their spouse or children simply because the person had been missing for several months.
Kokila said property, bank accounts, business interests and other assets remain legally owned by the missing person, meaning that family members could not simply withdraw all of the person’s money or sell his properties or assets, adding that the same issue could arise with liabilities.
She said the disappearance of a borrower does not automatically eradicate housing loans, car loans or other debts.
“Whether repayments continue and whether insurance or other protection applies will depend on particular financial arrangements. EPF savings could also present difficulties because the usual death-claim process requires the relevant proof of death.
“This is where the families can face serious difficulties and stumbling blocks.”
Kokila said Malaysia does not have a straightforward statutory system specifically allowing a family member to manage the financial affairs of a person who remains missing.
She said while there could be legal remedies depending on the assets and circumstances, the lack of a dedicated framework could leave dependents struggling to manage finances that were previously handled by the missing person.
Kokila proposed that Malaysia should consider a mechanism similar to the United Kingdom’s Guardianship (Missing Persons) Act 2017, which allows a court to appoint a guardian to manage some or all of a missing person’s property and financial affairs.
She said Section 2 of the Act allows a person to apply for a guardianship order while Section 3 generally requires the missing person to have been missing for at least 90 days, subject to statutory provisions, including an exception in which an urgent decision is needed.
She added that such a system would allow families to manage a missing person’s affairs without treating the assets as an inheritance before the person’s death had been legally established.
“The objective is not to give the family the person’s inheritance prematurely. It is simply to ensure that the person’s assets can be properly managed and that the dependents are not left destitute.”
