In Philippine law, a Deed of Donation is a solemn contract where a person (the donor) gratuitously disposes of a thing or right in favor of another (the donee), who accepts it. When the donor or the donee cannot be physically present to sign the deed, they must execute a Special Power of Attorney (SPA).
Because donation involves the transmission of property rights without professional consideration, the law is strict regarding the authority of an agent to act on behalf of a principal.
1. Legal Basis for an SPA in Donations
Under Article 1878 of the Civil Code of the Philippines, a Special Power of Attorney is specifically required for several acts of strict dominion. Relevant to donations, an SPA is necessary:
- To effect mutations of real property: To give or receive a piece of land.
- To make gifts: Except customary ones for charity or those made to employees in the establishment managed by the agent.
- To bind the principal in a contract: Especially those involving the transfer of ownership.
2. Essential Content of the SPA
An SPA for a Deed of Donation is not a generic document. To be legally enforceable and acceptable by the Register of Deeds or the Bureau of Internal Revenue (BIR), it must contain:
A. Specific Description of the Property
The document must clearly identify the property being donated. For real estate, this includes the Transfer Certificate of Title (TCT) number, the Lot and Block numbers, and the location (Barangay/City).
B. Specific Authority to Donate or Accept
The "Special" in SPA means the authority is limited. The document must explicitly state that the attorney-in-fact is authorized to:
- Sign the Deed of Donation on behalf of the principal.
- Accept the donation (if representing the donee).
- Process the transfer of taxes (Donor's Tax) and titles.
C. Identification of the Parties
The full names, marital status, and addresses of the principal and the appointed attorney-in-fact must be stated.
3. Formal Requirements and Execution
To be valid for the purpose of transferring titled property, the SPA must meet the following formal criteria:
- Written Instrument: A donation of immovable property (and the authority to execute it) must be in writing.
- Notarization: The SPA must be notarized by a Notary Public. This converts the document from a private instrument into a public instrument, making it admissible in evidence without further proof of its authenticity.
- Consularization (Apostille): If the principal is residing abroad, the SPA must be executed at the Philippine Consulate or Embassy. Alternatively, if executed before a foreign notary, it must be Apostillized in accordance with the Hague Convention to be recognized in the Philippines.
4. The Importance of "Acceptance"
In the Philippines, a donation is not perfected until the donor knows of the acceptance by the donee.
- If the agent is signing for the Donee, the SPA must specifically grant the power to "accept the donation" and "sign the certificate of acceptance."
- If the acceptance is made in a separate instrument, the donor must be notified in an authentic form, and this step must be noted in both instruments.
5. Required Attachments for Processing
When using an SPA to execute a Deed of Donation, the following documents are typically required by government agencies (BIR/LRA):
| Document | Purpose |
|---|---|
| Original SPA | To prove the agent's authority to the BIR and Register of Deeds. |
| Valid IDs | Photocopies of the Principal’s and Agent’s government-issued IDs. |
| Tax Declaration | For the assessment of the donor's tax based on zonal value. |
| Certified True Copy of Title | To verify ownership before the donation is processed. |
6. Common Pitfalls to Avoid
- General Clauses: A general power to "manage property" or "enter into contracts" is insufficient for a donation. The power to donate must be "special" and "express."
- Expired IDs: Notaries and government agencies will reject SPAs if the principal’s identification used during notarization is expired.
- Capacity: The donor must have the capacity to contract and dispose of their property at the time the SPA is used. If the principal dies or becomes legally incapacitated before the Deed of Donation is signed, the SPA is generally revoked by operation of law.