Notary Public Requirements for Authorized Representatives

Notary Public Requirements for Authorized Representatives in the Philippines
An Overview Under Philippine Law

Notarization in the Philippines is governed primarily by the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC) and relevant issuances by the Supreme Court. One of the most common areas of concern involves notarized documents executed through an authorized representative—i.e., an agent or attorney-in-fact—who acts on behalf of another person (the principal). Below is a comprehensive guide to understanding the notary public requirements for authorized representatives in the Philippine context.

1. Legal Framework

  1. 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC)

    • Defines who may be commissioned as a notary public in the Philippines.
    • Sets forth the responsibilities and restrictions of notaries, including the requirement of personal appearance and the verification of identities.

  2. Civil Code of the Philippines (Republic Act No. 386, as amended)

    • Governs general rules on agency and representation.
    • Establishes the basis for creating powers of attorney and the scope of authority given to agents.

  3. Other Relevant Laws and Regulations

    • Revised Administrative Code provisions on notarial acts for government documents.
    • Philippine Rules of Court, particularly regarding evidence, for authenticity of notarized instruments when presented in court.

2. Key Concepts: Agency, Representation, and Special Power of Attorney

  1. Agency and Representation

    • Under Philippine law, an agency relationship is created when one person (the principal) delegates authority to another (the agent or attorney-in-fact) to perform acts on the principal’s behalf.
    • The agency may be general (covering a wide range of transactions) or special (covering specific transactions).

  2. Special Power of Attorney (SPA)

    • The most common legal instrument authorizing a representative to sign or act on behalf of a principal for a specific purpose.
    • An SPA typically requires notarization to be valid for real property transactions, banking transactions, or other significant acts.
    • If the principal is overseas, the SPA must follow Philippine consular rules (i.e., notarized before a Philippine consulate or apostilled under the Hague Apostille Convention).

  3. General Power of Attorney (GPA)

    • A broader instrument granting the agent authority to act on almost all matters on behalf of the principal.
    • Also often notarized to ensure authenticity and to meet formal requirements for certain transactions.

3. Role of the Notary Public

A notary public in the Philippines has the following key responsibilities when it comes to notarizing documents signed by an authorized representative:

  1. Verification of Personal Appearance

    • The 2004 Rules on Notarial Practice emphasize the requirement that the person signing a document (whether as a principal or as an authorized representative) must personally appear before the notary.
    • The notary must observe the signatory actually affixing their signature to the document or acknowledging the signature therein.

  2. Verification of Identity

    • The notary public must require at least one competent evidence of identity (e.g., government-issued ID such as passport, driver’s license, Unified Multi-Purpose ID, etc.).
    • If the individual is acting as an agent or attorney-in-fact, the notary must check both the ID of the signatory and the document that confers authority (SPA or GPA).

  3. Examination of the Document Conferring Authority

    • The notary must ensure that the Special Power of Attorney or other proof of agency is valid, bearing the required signatures and notarization (or consular acknowledgment, if executed abroad).
    • The notary public confirms that the scope of authority within the document indeed covers the act being performed. For instance, if the representative is executing a Deed of Absolute Sale of real property, the SPA must explicitly grant authority to sell or convey real property.

  4. Maintenance of a Notarial Register

    • Every notarization must be recorded in the notarial register (also called a notarial book) with details including:
      • The name and address of the signatory.
      • The date and time of notarization.
      • The type of document notarized.
      • The type of identification presented.
      • The document granting authority, if applicable (e.g., SPA).

  5. Proper Notarial Certificate

    • The notary public must attach a notarial certificate to the document, indicating the date of notarization and the location (notary’s place of commission), and confirm the personal appearance of the signatory.
    • The certificate should reflect that the signatory is acting under a specific authority—e.g., “Juan dela Cruz, as Attorney-in-Fact for Maria Santos.”

4. Requirements for the Authorized Representative

  1. Valid Written Authority

    • A duly executed and validly notarized SPA, GPA, or other written instrument designating the agent’s authority.
    • Must specify the acts the agent is authorized to perform (e.g., signing a contract, selling property, managing bank accounts).

  2. Legal Capacity and Age

    • The authorized representative must be of legal age (18 years or older) and have the capacity to contract.
    • Individuals who are incapacitated or disqualified under the law (e.g., minors, persons declared incompetent by court) cannot act as authorized representatives.

  3. Personal Appearance and Valid Identification

    • The representative must physically appear before the notary public.
    • Present at least one (1) valid government-issued identification (or similar credible ID) matching the name on the SPA.

  4. Document Preparation

    • If the principal is abroad, the SPA or GPA must be either:
      • Executed before and notarized by a Philippine consular official; or
      • Apostilled in accordance with the Hague Apostille Convention (the Philippines adopted the Apostille Convention in 2019).
    • The authorized representative should bring the original or certified true copy of the SPA/GPA for the notary’s inspection.

  5. Compliance with Transaction-Specific Requirements

    • Some transactions (e.g., real estate sale, mortgage, corporate transactions) have additional documentary requirements.
    • The notary public or the parties to the transaction may request additional documents such as certified true copies of land titles, corporate secretary’s certificates, or board resolutions (for corporate agents).

5. Common Scenarios Involving Authorized Representatives

  1. Real Estate Transactions

    • The authorized representative must present a notarized SPA specifically granting authority to sell, mortgage, lease, or otherwise dispose of real property.
    • Real estate Deeds of Sale executed by an attorney-in-fact require explicit mention that the representative is acting on behalf of the principal.

  2. Bank Transactions

    • Opening or closing accounts, loan applications, and other banking transactions often require an SPA granting authority to deal with bank matters.
    • Banks commonly require specimen signatures of the principal and the agent, alongside the notarized SPA.

  3. Corporate or Business Transactions

    • Company representatives may act pursuant to a board resolution and a Secretary’s Certificate (for corporations) or a notarized Partnership Resolution (for partnerships) authorizing specific individuals to act on behalf of the entity.
    • These documents, when notarized, confirm the validity of the representatives’ authority.

  4. Overseas Filipinos (OFW) or Individuals Abroad

    • An OFW or any individual who is abroad may execute an SPA before a Philippine Consulate, which performs consular notarization or authentication (Apostille).
    • Once the SPA is properly authenticated or apostilled, it is enforceable in the Philippines.

6. Limitations and Pitfalls

  1. Non-compliance with Personal Appearance

    • If the authorized representative (or principal) did not personally appear before the notary public, the notarization is invalid. This can render the document void or unenforceable.
    • “Personal appearance” means physical presence; virtual or electronic notarization, while being piloted in some jurisdictions, has not been fully adopted for all transactions in the Philippines. Always check the latest Supreme Court issuances regarding e-notarization pilot programs.

  2. Insufficient Scope of Authority

    • If the SPA or GPA does not explicitly allow the authorized act, the notary public may refuse notarization, or the act itself may be challenged legally.
    • Always ensure that the document contains clauses covering the specific transaction.

  3. Improper or Expired Commission of the Notary Public

    • The notary public must have an active notarial commission in the judicial region where the notarization is performed. Documents notarized by someone with an expired or invalid commission may be deemed invalid.

  4. Failure to Present Proper Identification

    • If the notary cannot verify identity through satisfactory evidence (credible ID, personal knowledge, or credible witness), the notarization must be refused.

7. Best Practices

  1. Thoroughly Review the SPA or GPA

    • Before visiting the notary, ensure the SPA/GPA is complete, accurate, and adequately grants the authority needed for the intended transaction.

  2. Bring Original Documents

    • Present the original copy of the SPA or GPA and valid IDs to avoid questions about authenticity.

  3. Check the Notary’s Commission

    • Verify that the notary public has an active commission within the city or province where the notarization is being done.

  4. Record-Keeping

    • Maintain copies of all notarized documents for future reference, especially for high-value or high-stakes transactions like real estate deals.

  5. Seek Legal Advice When Necessary

    • If uncertain about the scope of authority or the legal implications of an SPA/GPA, consult an attorney to avoid legal disputes or invalid transactions.

8. Conclusion

In the Philippines, the requirements for a notary public to notarize documents executed by an authorized representative (or attorney-in-fact) are anchored on the principles of personal appearance, proper identification, and valid proof of authority. Whether transacting in real estate, banking, or corporate affairs, the Special Power of Attorney or General Power of Attorney is central to establishing the agent’s authority. Compliance with the 2004 Rules on Notarial Practice and related laws ensures that the notarized document is valid, enforceable, and recognized by Philippine courts and government agencies.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. For specific concerns or complex transactions, individuals are encouraged to consult a qualified attorney familiar with Philippine laws.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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