A special power of attorney is a legal document appointing a specific representative (to be called an agent or attorney-in-fact) to act on behalf of another person who will be referred to as the principal. The circumstances in which the agent can act on behalf of the principal are laid out in the document. It’s also called a limited power of attorney since the agent is only authorized to perform specific actions on behalf of the principal. It must be noted that writing a SPA will give the agent the legal right to make decisions on your behalf. This article will teach you about the unique power of attorney and how to create one yourself.
DISCLAIMER: This article has been written for general informational purposes only and is not legal advice or a substitute for legal counsel. You should contact your attorney to obtain advice with respect to any particular issue or problem. The use of the information contained herein does not create an attorney-client relationship between the author and the user/reader.
To save you the hassle of writing a Special Power of Attorney from scratch, you may download this sample template and edit the contents using the guide below.
Are you writing a Special Power of Attorney from scratch without knowing its format? To help you, we have created a template you can use for any purpose (see the download link above). Please complete the form correctly while ensuring all the details are correct since it will be legal .
After filling in the required information, print at least three copies of the SPA for the following:
Bring the SPA to the Notary Public, where you sign the document and have it notarized. Pay the notarial fees, which cost a minimum of Php 500.
There are two types of power of attorney, and it’s essential to know how each works so you can execute the right one according to your legal needs.
This type of power of attorney has a broad scope and grants a person the power to administer and manage their business and properties.
This type of power of attorney is for a specific task to be done by your representative. SPA is also needed on some transactions specified under the Civil Code of the Philippines, e.g., selling real property by an agent requires a SPA.
Appointing someone as your representative will give the latter the authority to do various tasks on your behalf.
However, a general power of attorney is broader and gives the representative the legal right to administer and manage your business and properties. General Power of Attorney is limited to the act of administration.
On the other hand, an extraordinary power of attorney is for specific tasks to be undertaken by your representative and for those tasks required by the Civil Code of the Philippines to be done with a Special Power of Attorney; otherwise, the agent’s action is void.
Anyone who needs to assign a representative to sign papers, manage assets, or handle money on his behalf, among others, can execute a Special Power of Attorney.
You can appoint anyone to be your representative if you fully trust the person. He/She should also be of legal age.
Under the Civil Code of the Philippines 7 , a Special Power of Attorney is necessary in the following cases. It means that if your representative/agent performs the following function without a SPA, the transaction is not valid.
In addition to the above, the following are usual transactions where a SPA is used:
On the other hand, these are some of the limitations to a special power of attorney:
It simply means that if you have given your representative/agent a SPA to sell your property, the agent cannot mortgage it and vice versa. The task is specific to selling or mortgaging, as the case may be.
A Consularized SPA is simply a Special Power of Attorney that will be signed abroad. The Consularized SPA is for OFWs who wish to assign a representative back in the Philippines but cannot come home for various reasons.
The Consularized SPA will be executed at the Philippine Embassy of your country.
A Consularized SPA can assign someone to fulfill legal transactions on your behalf.
To get a Consularized SPA, the following requirements must be supplied:
The cost of notarization varies depending on the location and the notary public. Rates could range from Php 500 to Php 1,000 or higher.
Generally, yes, you can revoke the Special Power of Attorney anytime. You must write a new document titled ‘Revocation of Special Power of Attorney,’ which should state that you no longer want to be represented by your assigned representative.
After signing the document, have it notarized, and it will be effective immediately.
However, a SPA cannot be revoked in the following circumstances:
*if a bilateral contract depends upon it;
*it is a means to fulfill an obligation already contracted;
*if a partner is appointed manager of a partnership in the partnership contract and his removal from the management is unjustifiable.
Simply put, you as a principal cannot revoke the SPA granted to another person if doing so, an existing contract cannot be carried out, or the tasks under the SPA are the means to fulfill an obligation under the contract.
It depends on what type of Special Power of Attorney was made. If you have indicated that the SPA will only be valid within a specified period, then it will no longer be effective once that period’s over. On the other hand, if you haven’t indicated a validity period in the SPA, it will remain effective until you have it revoked.
No. As expressly stated under the Rules on Notarial Practice 8 , an Attorney (or a Notary Public) cannot notarize a SPA or any document if he or she is a party to it.
Yes. There is no prohibition to putting many representatives/Attorney-in-fact in one document to perform particular tasks as long as you include their names in the SPA.
Yes, all parties who affixed their signature on the SPA must be physically present before a notary public at the time of the notarization.
However, suppose the person cannot be present during notarization. In that case, the notary public can sign the document on behalf of a person who cannot sign it provided that 9 :
*the notary public is directed by the person unable to sign on his behalf;
*the signature of the notary public is affixed in the presence of two disinterested and unaffected witnesses to the document;
*both witnesses sign their names; the notary public writes below his signature, “Signature affixed by the notary in the presence of (names and address of two witnesses)”; and
*the notary public notarizes his signature by acknowledgment or jurat.
Generally, the notary public must only perform the notarial act within his regular place of work and business. Still, on exceptional occasions or situations, such as when the person signing the document is confined in the hospital or other medical institution for treatment, the notary public is authorized to perform the notarial act in the said hospital or medical institution.
Likewise, due to the Covid-19 situation in the country, the Supreme Court recently issued an interim rule 10 allowing video conferencing facilities in cases where the notary public or at least one of the principal is situated in a locality under the community quarantine. This means that, through video conference, your document may be notarized without the need to go to the office of the notary public. The Interim Rule is valid until the Supreme Court directs otherwise.
There is no need for a principal to apply for a Philippine passport before he or she can obtain a SPA. Foreign nationals can execute a SPA to be used in the Philippines.
However, you have to check with the Philippine Consulate of the country you are in if they can notarize or consularize your SPA. It appears that rules are different in each Consular Office.
For example, the
Philippine Embassy in India states explicitly that it does not perform notarial services for non-Filipino nationals. In contrast, the German Embassy allows notarizing a SPA executed by a German citizen. On the other hand, the SPA form of the Philippine Consulate in Los Angeles, California, or the United Kingdom does not require the citizenship of the principal.
If notarization of the SPA by a non-Filipino is not possible in the Philippine Consular Office, you can opt for an Apostillized document. Apostille documents are valid and automatically accepted in the Philippines. To learn more about this process, please read the next entry.
An Apostillized document is a public document (such as a birth/marriage/death certificate, school records, notarized documents such as SPA, etc.) that bears an Apostille issued by a Competent Authority of the foreign country. An Apostille is a certificate that authenticates the origin of a public document.
Previously, the Philippine Consulate authenticated or affixed the red ribbon to public documents issued by a foreign country. Since May 14, 2019, authentication or affixing of the red ribbon is no longer done. Instead, you must obtain an Apostille.
To get an Apostille in your SPA, you first have to go to a notary public of the country you are in to have your SPA notarized following the law of the said country. The notarization converts the SPA into a public document. Once the SPA is notarized, you need to go to the Competent Authority designated by the country to get the Apostille. Check out this link to see the address and contact details of all the competent authorities authorized to issue Apostille in the country you are currently in.
Generally, the old SPA with no expiration date is still valid, provided that the modes of extinguishing the agency are absent.
However, in actual practice, the latest SPA is required to ensure that the agent still has the mandate and that the buyer’s current information (for example, the civil status has changed from single to married).
Buying and selling real property through an agent is risky; hence, parties must conduct due diligence. Requiring the latest SPA is part of the due diligence.
The SPA is no longer valid because one of the modes of extinguishing the agency is the death of the principal (or the agent). However, the SPA will remain valid even after the principal’s death if it has been constituted (or created) in the common interest of the principal and the agent or in the interest of a third person who accepted the stipulation in his favor 11 .
You may verify the validity or authenticity of the SPA by checking with the notary public who notarized the document. Before notarizing the SPA, the notary public has ascertained that:
*the owner (or principal) personally appeared before him and presented *the SPA for notarization
the person who signed the document is indeed the owner through the *showing of competent evidence of identity (such as government-issued IDs)
*the principal voluntarily affixed his signature to the document.
You may also visit the notarial section of the Hall of Justice of the city or province where the SPA was notarized and verify if the document exists and is included in the notarial register of the notary public.
Notary publics are required to keep and maintain a notarial register. They must also furnish a copy of all documents acknowledged to the Clerk of Court every month.
Yes, multiple principals can make just one SPA to one agent or attorney-in-fact, such as in the case of a real estate property owned by several people/members of the family.
Yes, multiple agents or attorneys-in-fact are allowed. This is practical and will speed up the accomplishment of the tasks. For example, one is to do the leg work and be the liaison (processing papers in different offices), while the other is responsible for signing contracts, receiving payments, etc.
The tasks to be performed by an agent in a Special Power of Attorney is broader and could be any subject the principal wants to assign, including giving the agent authority to sell. In Authority to Sell, the subject is specific and limited to selling an object or property.
Yes, the agent may appoint a substitute, provided the principal does not prohibit him from establishing a substitute. However, please note that the attorney-in-fact shall be responsible for the acts of the substitute when:
*He was not given the power to appoint a substitute;
*He was given such power (the principal did not designate a particular substitute) but chose a notoriously incompetent or insolvent person.
Please note further that if the attorney-in-fact appointed a substitute even with the prohibition of the principal, all acts of the substitute shall be void 12 .
For a substitution to be possible, the attorney-in-fact may execute a separate Special Power of Attorney (SPA) appointing a substitute, referencing/mentioning in the document the original SPA that the principal has given to him to show that he has the authority to act on behalf of the principal; and, enumerating in the SPA the specific tasks that the substitute shall perform.
Documents with a red ribbon are still valid, and you may still use the same, provided the subject document and the red ribbon are still within their validity period. Issuing the Apostille Certificate did not invalidate the previous process of authenticating a document by affixing a red satin ribbon. It only replaces it; hence, having the SPA apostilled again is unnecessary, as it will be redundant.
It depends on the entity requiring the Special Power of Attorney. Best to check with the entity requiring the SPA if it allows a digital copy. Generally, the entity will need an original copy of the SPA to validate the document’s authenticity and the signatories. This is critical in rights transfer transactions (e.g., SPA to Sell Real Property).
Yes, the Special Power of Attorney is valid as a thumb or another mark on a document is allowed instead of a signature 13 . For a SPA with a thumb or another mark to be notarized, the thumb or other mark must be affixed in the presence of the notary public and of two disinterested witnesses.
Last Updated July 1, 2024 11:18 AM
Kareen Lucero is a lawyer previously doing litigation before working for different agencies in the government and for a multinational corporation. She has traveled to 52+ countries including a 3-month solo backpacking in South East Asia and more than 1 year of solo traveling across four continents in the world. As part of giving back, she is passionate about sharing her knowledge of law and travel. She is currently doing consulting work for a government agency. For inquiries, you may reach her via Facebook Messenger (https://m.me/kareen.lucero.77) or email ([email protected]).
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