When and How to Use a Special Power of Attorney in the Philippines

A Special Power of Attorney (SPA) is one of the most practical and widely used legal instruments in Philippine law, particularly for Filipinos living abroad or those who are temporarily unable to personally attend to important transactions. Unlike a General Power of Attorney (GPA), which grants broad authority similar to the principal himself acting, an SPA is strictly limited to the specific act or acts expressly stated in the document.

The SPA is governed primarily by the provisions on Agency in the Civil Code of the Philippines (Articles 1868–1932), the Rules of Court, the Notarial Law (A.M. No. 02-8-13-SC, as amended), and relevant jurisprudence from the Supreme Court.

Key Differences Between Special Power of Attorney and General Power of Attorney

Aspect	Special Power of Attorney (SPA)	General Power of Attorney (GPA)
Scope	Limited only to the specific acts enumerated	Broad, covers all acts of administration and dominion
Interpretation	Strictly construed; agent cannot exceed authority	Liberally construed
Form required for real property	Must be in public instrument (notarized)	Also public instrument, but may include special acts
Common use	Sale/transfer of specific property, litigation, bank transactions	Overall management of properties and businesses

When a Special Power of Attorney is Mandatory (Article 1878, Civil Code)

The law expressly requires a special power for the following acts:

1. To sell, mortgage, or otherwise encumber real property (land, house and lot, condominium unit).
2. To lease real property for more than one year if the principal is the lessor.
3. To make payments that are not ordinary expenses or acts of administration.
4. To effect novations that extinguish obligations.
5. To compromise, submit claims to arbitration, or renounce rights.
6. To waive obligations gratuitously.
7. To accept or repudiate an inheritance.
8. To make gifts (except customary small ones).
9. To loan or borrow money.
10. To ratify or recognize obligations contracted before the agency.
11. Any other act of strict dominion or ownership.

For these acts, a general power containing only the phrase “to perform all acts necessary for the accomplishment of the above” is insufficient. The special power must be explicit.

Most Common Situations Where Filipinos Use an SPA

1. Real Estate Transactions

   • Sale, donation, or mortgage of land, house, or condominium unit
   • Acceptance of subdivision lots
   • Signing of Deed of Absolute Sale, Deed of Donation, or Real Estate Mortgage before a notary public
   • Payment of capital gains tax, transfer tax, and registration with the Registry of Deeds and BIR

2. Vehicle Transactions

   • Sale or mortgage of a registered motor vehicle
   • Claiming a vehicle from the LTO or from impounding

3. Banking and Financial Transactions

   • Opening, closing, or withdrawing from bank accounts
   • Applying for or encashing bank loans
   • Signing promissory notes or loan restructuring agreements

4. Government Benefits and Claims

   • Filing and claiming SSS, GSIS, Pag-IBIG, or PhilHealth benefits
   • Processing retirement, disability, or death claims
   • Applying for or claiming insurance proceeds

5. Litigation and Legal Representation

   • Filing or defending cases in court (except when the attorney-in-fact is a lawyer)
   • Entering into amicable settlement or compromise agreement
   • Appearing in mediation or arbitration

6. Corporate and Business Acts

   • Representing a stockholder in a stockholders’ meeting
   • Signing contracts on behalf of a corporation (if authorized by board resolution)

7. Marriage by Proxy (Rare but Allowed)

   • When one party is abroad and cannot appear before the solemnizing officer

Requirements for a Valid and Effective Special Power of Attorney

1. In Writing
   The SPA must always be in writing (Article 1869, Civil Code).

2. Signed by the Principal
   The signature must be genuine. If the principal is illiterate or physically unable to sign, two witnesses must sign on his behalf and the document must state the reason.

3. Notarization

   • For acts of administration: private document is sufficient.
   • For acts of strict dominion (especially real property): must be notarized (public instrument).
   • The Supreme Court has repeatedly ruled that an unnotarized SPA for sale of land is invalid and cannot be the basis for registering the sale.

4. Specificity of Authority
   The acts authorized must be clearly and particularly described.
   Example: “To sell my parcel of land covered by TCT No. 123456 located at Lot 5, Block 10, Barangay San Antonio, Quezon City, with an area of 300 square meters, for a price and under terms and conditions acceptable to my attorney-in-fact.”

5. For Principals Abroad (Consularized or Apostillized SPA)

   • Executed before a Philippine Consul or Embassy officer (consularized SPA), or
   • Executed before a foreign notary public and then apostillized (for Hague Apostille Convention countries) or authenticated by the Philippine Embassy/Consulate (red-ribbon) for non-Hague countries.
   • As of 14 May 2019, the Philippines is now a member of the Apostille Convention, so red-ribbon authentication is no longer required for apostillized documents from member countries.

6. Validity Period

   • No expiration unless stated.
   • However, banks, government agencies, and registries usually require an SPA executed within the last 6–12 months, or may require a Certificate of No Revocation.

Recommended Contents of a Strong SPA

A well-drafted SPA should contain:

1. Full name, citizenship, civil status, address of principal and agent
2. Date and place of execution
3. Clear description of the property or transaction (TCT/OCT/CCT number, technical description, vehicle plate number, bank account number, etc.)
4. Specific powers granted (enumerate, do not use vague language)
5. Authority to delegate (substitution) — if desired
6. Statement that the agent accepts the authority
7. Signature of principal and agent
8. Notarial acknowledgment
9. Community tax certificates (cedula) if executed in the Philippines (though no longer strictly required)

Revocation of Special Power of Attorney

An SPA may be revoked at any time by the principal. Best practices:

1. Execute a Revocation of Special Power of Attorney (notarized).
2. Notify the agent in writing.
3. If the SPA was registered with the Registry of Deeds (annotation on title), register the Revocation as well.
4. Notify third parties (banks, buyers, government agencies) who may rely on the SPA.

Failure to notify third parties who act in good faith may still bind the principal.

Risks and Common Mistakes

• Using a downloaded generic SPA without customizing the powers → may be declared insufficient by courts or registries.
• Granting power to sell without specifying price or terms → agent can sell at any price (Supreme Court has upheld very low prices if not limited).
• Appointing an untrustworthy agent → fraud cases abound.
• Expired consularized SPA → many banks reject SPAs older than 1 year even if legally still valid.
• Not including power of substitution when needed → agent cannot appoint another person if he becomes unavailable.

Final Recommendations

1. Always consult a lawyer when drafting an SPA involving real property or large sums.
2. For OFWs, have the SPA consularized or apostillized immediately after signing abroad.
3. Keep certified true copies and register the SPA with the Registry of Deeds when it involves land (optional but highly recommended to protect against double sale).
4. If possible, limit the validity period (e.g., 1–2 years) to reduce risk.

The Special Power of Attorney, when properly executed, is an extremely powerful and convenient tool that allows Filipinos — whether abroad or locally — to protect their interests without the need for personal appearance. Used correctly, it saves time, money, and unnecessary travel. Used carelessly, it can result in loss of property or irreversible legal consequences.