Legal Matters – Page 3

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 clearly 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 everything you need to know about the special 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. Free Downloadable/Editable Special Power of Attorney Sample Template. 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. How To Get Special Power of Attorney: A Step-by-Step Guide. 1. Prepare the document. Are you writing a Special Power of Attorney from scratch and have no clue about its format? To help you out, we have created a template that you can use for any purposes (see download link above). Fill out the form properly while making sure that all the details are correct since it will be a legal document. How to fill out the Special Power of Attorney template. When filling out the SPA form, you must provide the following details: Name, nationality, civil status, and address of the Principal. Name, nationality, civil status, and address of the Representative/Attorney-in-Fact to be given authority The task/s that will be undertaken by the Representative/Attorney-in-Fact.Date and place where the Principal will sign the SPA.Name and signature of the Principal. Name and signature of the Representative/Attorney-in-Fact.Name and signature of two witnesses.Acknowledgment from the Notary Public. Details of the Principal’s valid ID (ID Name, ID Number, and Expiry Date) will be indicated in the Acknowledgment. 2. Print copies of the duly-accomplished SPA. After filling in the required information, print at least 3 copies of the SPA for the following: 1 copy for the Principal1 copy for the Representative/Attorney-in-Fact1 copy for the Notary Public 3. Have the document notarized. Bring the SPA to the Notary Public where you signed the document and have it notarized. Pay the notarial fees which cost a minimum of Php 500. What Are the Different Types of Power of Attorney? There are two types of power of attorney and it’s important to know how each works so you’ll be able to execute the right one according to your legal needs. 1. General Power of Attorney. This type of power of attorney has a broad scope and grants a person the power to administer and manage your business and properties. 2. Special Power of Attorney. 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 of real property by an agent requires a SPA. What’s the Difference Between Special Power of Attorney and General Power of Attorney? Appointing someone as your representative will give the latter the authority to do a variety of 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. Learn More: How to Make General Power of Attorney in the Philippines: A Definitive Guide A special power of attorney, on the other hand, is for specific tasks to be undertaken by your representative as well as for those tasks required by the Civil Code of the Philippines to be done with a Special Power of Attorney, otherwise, the action of the agent is void. Who Can Get a Special Power of Attorney? Anyone who for some reason 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. Who Can Be Your Agent or Attorney-in-Fact? You can appoint anyone to be your representative as long as you fully trust the person. He/She should also be of legal age. When Can I Use a Special Power of Attorney? Under the Civil Code of the Philippines1, 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. Make such payments as are not usually considered as acts of administration;Effect novations which put an end to obligations already in existence at the time the agency was constituted;Compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to waive objections to the venue of action or to abandon a prescription already acquired;Waive any obligation gratuitously;Enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration;Make gifts, except customary ones for charity or those made to employees in the business managed by the agent;Loan or borrow money unless the latter act be urgent and indispensable for the preservation of the things which are under the administration;Lease any real property to another person for more than one year;Bind the principal to render some service without compensation;Bind the principal in a contract of partnership;Obligate the principal as a guarantor or surety;Create or convey real rights over immovable property;Accept or repudiate an inheritance;Ratify or recognize obligations contracted before the agency;Any other act of strict dominion. In addition to the above, the following are usual transactions where a SPA is used: File tax returns; Claim government benefits; Maintain business interests; Manage bank accounts, cash, and even safety deposit boxes; Sell, mortgage, or manage assets and properties; Settle claims; Enter contracts; Plan estate and financial gifts; Receive bank loan; Submit the NBI application and claim NBI clearance; Apply for, renew, or claim PRC license; Apply and claim a driver’s license; Request for birth certificate and marriage certificate from PSA; Receive a birth certificate and marriage certificate from PSA. On the other hand, these are some of the limitations to a special power of attorney: A special power to sell that does not include the power to mortgage; A special power to mortgage that does not include the power to sell; A special power to compromise that does not necessarily authorize submission to arbitration. It simply means that if you have given your representative/agent a SPA to sell your property, the agent cannot mortgage your property and vice versa. The task is specific to selling or mortgaging as the case may be. How To Execute a Special Power of Attorney in the Philippines if You’re Abroad. What is a Consularized SPA? A Consularized SPA is simply a Special Power of Attorney which will be signed abroad. The Consularized SPA is for OFWs who wish to assign a representative back in the Philippines but is unable to come home due to various reasons. The Consularized SPA will be executed at the Philippine Embassy of the country where you’re currently residing. What are the uses of a Consularized SPA? A Consularized SPA can be used to assign someone to fulfill legal transactions on your behalf. What are the requirements to get a Consularized SPA? To get a Consularized SPA, the following requirements must be supplied: Photocopy of the first and last page of your Philippine passport;Valid Philippine-issued government ID (only if the passport is not available, although some may require both the ID and passport);Personal appearance;Two witnesses (should be of legal age and also personally appear with you in the Embassy during the execution of the SPA);Valid IDs of witnesses;Notarial fee (amount varies per country). How to Get a Consularized SPA: A Step-by-Step Guide. Visit your nearest embassy's website and go to the consular services section. For example: For the Philippine Embassy in Italy, you can find the information here. For the Philippine Embassy in Japan, you can find the information here. For the Philippine Embassy in South Korea, you can find the information here.Download the Special Power of Attorney Form and fill out the details.Together with your two witnesses, go to the Philippine Embassy near you. Present the duly filled-out SPA and sign the document at the embassy. If everything goes well and there are no issues or missing documents, you’ll be asked to pay the consularization fee ranging from Php 1,500 to Php 3,000 plus an additional fee for the courier services. It usually takes around three business days to process the document. Once the document has been released, you can send it back to your family in the Philippines and use it for its intended purpose. Frequently Asked Questions. 1. How much does it cost to have a Special Power of Attorney? 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. 2. Can the Special Power of Attorney be revoked? Generally yes, you can revoke the Special Power of Attorney anytime you want. You just have to 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 contract of partnership and his removal from the management is unjustifiable2. 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. 3. Does Special Power of Attorney have an expiry date? 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. 4. The Principal is already an Attorney. Can an Attorney notarize his or her own Special Power of Attorney? No. As expressly stated under the Rules on Notarial Practice3, an Attorney (or a Notary Public) cannot notarize a SPA or any document if he or she is a party to it. 5. Is it okay to make one Special Power of Attorney for the whole family if I am assigning someone to pick up documents on our behalf from the DFA office? Yes. There is no prohibition to put many representative/Attorney-in-fact in one document to perform particular tasks as long as you include their names in the SPA. 6. Do all the signatories need to be physically present in front of the notary public in order for the Special Power of Attorney to be notarized? 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, if the person cannot be present at the time of notarization, the notary public can sign the document on behalf of a person who is physically unable to sign it provided that4: 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)"; andthe 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 rule5 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. 7. Can foreigners or non-Filipino citizens execute a Special Power of Attorney to be used in the Philippines? 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 Offices. For example, the Philippine Embassy in India specifically states that it does not perform notarial services for non-Filipino nationals, whereas, in the German Embassy, it allows notarization of 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 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. 8. What is an Apostillized document? How do I Apostillize a Special Power of Attorney? An Apostillized document is a public document (such as 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 authenticates or affixes 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 Authority authorized to issue Apostille in the country you are currently in. Related: How to Authenticate Documents in DFA: An Ultimate Guide to Apostille Certificate 9. Do I still need to secure a Consularized Special Power of Attorney if I already executed a Special Power of Attorney while I was still in the Philippines? Generally, the old SPA with no expiration date is still valid, provided that the modes of extinguishing the agency are not present. However, in actual practice, the latest SPA is required to ensure that the agent still has the mandate and the information of the buyer is still current (for example, the civil status has changed from being single to married). Buying and selling real property through an agent is a risky transaction; hence, parties are required to conduct due diligence. Requiring the latest SPA is part of the due diligence. 10. The principal has already died. Is the Special Power of Attorney still valid? 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 favor6. 11. How can I verify the validity/authenticity of a Special Power of Attorney? 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 notarizationthe 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 included in the notarial register of the notary public. Notary publics are required to keep and maintain a notarial register. They are also mandated to furnish a copy of all documents acknowledged before him to the Clerk of Court every month. 12. Are multiple principals allowed even if there's only one attorney-in-fact? 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 13. Are multiple attorneys-in-fact allowed? 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 of papers in different offices), while the other is responsible for signing contracts, receiving payments, etc. 14. What is the difference between a Special Power of Attorney and an Authority to Sell? The tasks to be performed by an agent in a Special Power of Attorney is broader and could be any subject that the principal wants to assign, including giving the agent authority to sell. In an Authority to Sell, the subject is specific and limited to a sale of an object or property. 15. The representative or attorney-in-fact can't perform the transactions stipulated in the Special Power of Attorney due to unforeseen circumstances. Can a substitute assume the representative's role? If so, what is the legal process required to make this possible? Yes, a substitute may be appointed by the agent, provided he is not prohibited by the principal to appoint 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 he chose a notoriously incompetent person or insolvent. 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 void7. 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. 16. The Special Power of Attorney was authenticated with a red ribbon. Is it still valid or do I need to have it "Apostillized"? Documents with 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. The issuing of the Apostille Certificate did not invalidate the previous process of authenticating a document by affixing a red satin ribbon. It only replaces it, hence, there is no need to have the SPA Apostillized again as it will be redundant. 17. I'm executing a Special Power of Attorney abroad for my representative/s in the Philippines. Do I need to send the original SPA to my representative/s or will a digital copy sent via fax or email suffice? 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 require an original copy of the SPA to validate the authenticity of the document and the signatories. This is most critical in transactions involving the transfer of rights (e.g. SPA to Sell Real Property). 18. The principal is unable to affix a signature to the Special Power of Attorney so a thumbprint was provided instead. Is the SPA considered valid? Yes, the Special Power of Attorney is valid as a thumb or another mark on a document is allowed in lieu of a signature8. For a SPA with 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. References.