Should a Special Power of Attorney (SPA) be in writing and notarized in order to be valid?
No. Special Power of Attorney (SPA) is not required to be in writing and need not be notarized in order to be valid. (De Leon, Comments and Cases on Partnership, Agency, and Trust, p. 443, 2005 ed)
Is the intervention of a notary public required for the validity of an Special Power of Attorney (SPA)?
A power of attorney is valid although no notary public intervened in its execution. (Barretto v. Tuason, G.R. Nos. L-‐36811, 36827, 36840, 36872, Mar. 31, 1934) (De Leon, p. 443, 2005 ed)
When SPA is executed in a foreign country, it must be certified and authenticated according to the Rules of Court, particularly Sec. 25, Rule 132.
Note: When the special power of attorney is executed and acknowledged before a notary public or other competent official in a foreign country, it cannot be admitted in evidence unless it is certified as such in accordance with the foregoing provision of the rules by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept of said public document and authenticated by the seal of his office. (Medina v. Natividad, G.R. No. 177505, Nov. 27, 2008) The failure to have the special power of attorney (executed in a foreign country) authenticated is not merely a technicality – it is a question of jurisdiction. Jurisdiction over the person of the real party-in-interest was never acquired by the courts. (Ibid.)
When is a special power necessary?
1. to Create or convey real rights over immovable property;
2. Convey or Acquire immovable
3. to Loan or borrow money, unless the latter act be urgent and indispensable for the preservation of the things which are under administration;
4. to Lease any real property to another person for more than one year;
5. to Make such Payments as are not usually considered as acts of administration;
6. to Obligate principal as guarantor or surety
7. to bind the principal to render some Service without compensation;
8. to bind the principal in a contract of Partnership;
9. to Ratify obligations contracted before the agency
10. to Accept or repudiate an Inheritance
11. Effect Novation
12. to make Gifts, except customary ones for charity or those made to employees in the business managed by the agent
13. Compromise, Arbitration and Confession of Judgment
14. any Other act of strict dominion
15. Waive an obligation gratuitously
What are the limitations to a special power of attorney?
1. A special power to sell excludes the power to mortgage
2. A special power to mortgage does not include the power to sell (Art. 1879, NCC)
3. A special power to compromise does not authorize submission to arbitration (Art. 1880, NCC)
When is the principal not bound by the act of the agent?
1. General Rule: When the act is without or beyond the scope of his authority in the principal’s name. Exceptions: a. Where the acts of the principal have contributed to deceive a 3rd person in good faith b. Where the limitation upon the power created by the principal could not have been known by the 3rd person c. Where the principal has placed in the hands of the agent instruments signed by him in blank d. Where the principal has ratified the acts of the agent
2. When the act is within the scope of the agent’s authority but in his own name, except when the transaction involves things belonging to the principal.
Note: The limits of the agent’s authority shall not be considered exceeded should it have been performed in a manner more advantageous to the principal than that specified by him.