Affidavit of Loss in the Philippines
Can a spouse execute one for you? A complete guide.
1. What an Affidavit of Loss is
An Affidavit of Loss is a sworn written statement describing how, when, and where a document, card, passbook, certificate, or other personal property was lost, and affirming that after diligent search it cannot be found. Once notarised, it becomes a public instrument and is usually the first documentary requirement for:
- Replacement of government-issued IDs (e.g., passport, driver’s licence, PRC card)
- Reissuance of bank passbooks, checks, share certificates, titles, OR/CR, etc.
- Blocking fraudulent use of lost negotiable instruments or credit cards
- Court petitions (e.g., re-issuance of owner’s duplicate TCT/CTC)
There is no specific statute titled “Affidavit of Loss Law.” Its legal force comes from:
- Rule II, §1(a) of the 2004 Notarial Rules – any written sworn declaration signed in the presence of a notary may be acknowledged.
- Civil Code arts. 1315 & 1356 – contracts and acts may be in any form unless the law requires a specific form; for public instruments, a notarial form is required.
- Revised Penal Code art. 183 – perjury liability attaches if the affiant knowingly makes a false statement.
2. The personal nature of an affidavit
At its core the affidavit is a first-hand narration. As a rule, the “loser” (the person who actually lost the item) must execute it, because:
- The facts are personal knowledge; only the affiant can swear to them.
- The notary must administer the oath to the person “whose act or deed is the subject of the statement.”
- Third-party affidavits are disfavoured unless expressly allowed (e.g., a guardian for a minor, a tutor for an incapacitated person).
3. Can your spouse sign in your place?
Short answer: Only with proper authority, or if a law specifically allows it. The spouse does not automatically have power to execute an affidavit of loss on your behalf. Consider the following scenarios:
| Scenario | Is spouse’s execution valid? | Why / how to cure |
|---|---|---|
| You are present and competent but simply busy | No. Delegating purely out of convenience is not allowed without a Special Power of Attorney (SPA). | Execute the affidavit yourself, or prepare an SPA giving authority to your spouse to “execute and sign an affidavit of loss covering ___ and to do all acts necessary for replacement.” |
| You are abroad | Yes, with SPA. | Execute an SPA (or an apostilled consularised SPA) abroad; spouse signs the affidavit citing the SPA. |
| You are illiterate or physically unable to sign | Possible. | Under Rules on Notarial Practice, Rule IV, §2, the notary may cause reading/interpretation; spouse may assist, but the affiant still affixes a thumb-mark. |
| You are legally incapacitated (minor, declared insane) | Guardian signs. | Spouse may act if judicially appointed guardian or under Art. 211 of the Family Code (joint parental authority). |
| The lost item is conjugal property (e.g., vehicle OR/CR) | Still personal. | Administration of conjugal property (Arts. 124-131, Family Code) lets either spouse manage, but the one who knows the loss should execute; or spouse executes with SPA. |
| The replacement agency expressly permits a “representative” affidavit | Follow agency rules. | Some banks allow a “Joint Affidavit of Loss” signed by both spouses; check the circular/FAQs. |
Key legal bases
- Civil Code art. 1878 (now retained in the New Civil Code). Certain acts require a Special Power of Attorney, among them “to appear as a witness to facts which must be stated under oath” and “to waive any obligation gratuitously.” Executing an affidavit falls under this category.
- Rule 138, Rules of Court (practice of law) does not prohibit a non-lawyer spouse from signing an affidavit if authorised, because it is not “practice of law” to sign one’s own affidavit.
- Family Code arts. 96 & 124 – either spouse may dispose of or encumber conjugal/community property with the written consent of the other, but an affidavit of loss does not dispose; still, agencies usually want the spouse with knowledge of the circumstances to swear.
4. Drafting the SPA for an affidavit of loss
An SPA must be:
- Specific – describe the lost item (“my Passport No. P####”, “my BDO passbook Savings Acct. ####”).
- Express – “to prepare, sign, and submit an Affidavit of Loss and all supporting declarations.”
- Notarised (or consularised) – so the agent can attach it to the affidavit.
- Dated and signed by the principal.
Tip: Some notaries use a “Secretary’s Certificate” for corporations; the parallel for spouses is a “Board Resolution-like SPA.”
5. Practical effects of an SPA-backed affidavit
- Government agencies (LTO, PSA, DFA) usually accept the representative’s affidavit if the SPA is presented.
- Banks often still require the account holder to appear and sign supplementary forms—even with an SPA—because of AMLA/KYC rules.
- Courts will accept an SPA-signed affidavit as an attachment to pleadings (see Rule 7, §5, Rules of Court) but may summon the principal for cross-examination.
- Perjury liability may extend to both principal and agent if they conspire to mislead.
6. Joint or substitute affidavits
- Joint Affidavit of Two Disinterested Persons – Some agencies (e.g., LTO for lost plates) allow two witnesses who know the facts to execute instead of the owner. The spouse may be one witness if “disinterested”—but a spouse is normally interested, so pick others.
- Affidavit of Loss with Undertaking – Banks sometimes require the representative-spouse to sign both the affidavit and an “undertaking” to indemnify the bank. The risk allocation is contractual, not statutory.
7. Steps when you need your spouse to do it
- Prepare SPA.
- Authenticate (notarise locally; apostille if executed abroad).
- Send originals to spouse.
- Spouse drafts affidavit quoting SPA details (“I am executing this under the authority granted by SPA dated … ”).
- Attach SPA plus photocopies of IDs of both spouses.
- Spouse appears before notary and signs.
- File or submit to the agency together with other replacement requirements and pay fees.
8. Frequently asked questions
| Question | Answer |
|---|---|
| Can I use a General Power of Attorney signed years ago? | Yes, if it has broad wording covering affidavits, is still valid, and has not been revoked. Some agencies, however, prefer an SPA dated within the last year. |
| Can an e-SPA (digitally signed) work? | Only if the notarial rules on remote notarisation (A.M. No. 02-07-01-SC as amended by 2021 guidelines) are followed and the agency accepts electronic documents. |
| Does community property regime (absolute community) matter? | The affidavit relates to ownership only insofar as proving the loss; authority to manage community property (Art. 96) still requires consent, but swearing to personal facts is different from disposing of property. |
| What if my spouse refuses to sign? | Execute the affidavit yourself, or choose another attorney-in-fact. An unwilling spouse cannot be compelled to make a sworn statement. |
| Must the notary see the lost item’s photocopy? | It is good practice but not a legal requirement; the notary only verifies identity and voluntariness. Attaching supporting documents bolsters credibility for the receiving agency. |
9. Penalties for false or irregular affidavits
- Perjury (RPC art. 183): imprisonment prisión correccional and a fine if statements are false.
- Falsification (RPC art. 171): making untruthful statements in a public document.
- Notary administrative liability if notarisation done without personal appearance or proper ID (could lead to revocation of notarial commission).
10. Key take-aways
- Affidavit of loss is personal.
- Spouse needs explicit authority—usually an SPA—unless acting as guardian or the agency’s rules allow substitute affidavits.
- Even with conjugal or community property, the identity of the affiant matters more than ownership.
- Draft the SPA and affidavit carefully to avoid rejection or perjury exposure.
- Always check the specific agency’s guidelines, which may tighten or relax the default legal rules.
This article synthesises statutory provisions (Civil Code, Family Code, Rules of Court, Notarial Rules) and standard administrative practice as of July 2025. It is for educational purposes and not a substitute for formal legal advice.