AFFIDAVIT OF ACKNOWLEDGMENT OF ATTORNEY-IN-FACT

LETTER TO THE LAWYER

Dear Attorney,

I hope this letter finds you well. I am writing to seek your advice regarding the proper execution and form of an Affidavit of Acknowledgment of an Attorney-in-Fact, as referenced in a Special Power of Attorney (SPA). I want to ensure that the affidavit is valid and enforceable under Philippine law, particularly in light of the applicable notarial requirements and legal doctrines. Since it is crucial for me to establish the authority of my attorney-in-fact, I would appreciate any guidance you could offer on drafting, notarization, and overall compliance with our legal system.

I am a concerned individual who wishes to formalize the acknowledgment of an attorney-in-fact to represent my interests in a specific transaction. However, I want to be sure that I am acting in accordance with Philippine laws and procedural rules. Please let me know the essential requirements, any potential pitfalls, and best practices for drafting an Affidavit of Acknowledgment in relation to the SPA.

Thank you in advance for your assistance. I look forward to your expert advice.

Respectfully,

A Concerned Citizen

LEGAL DISCUSSION: ALL YOU NEED TO KNOW ABOUT THE AFFIDAVIT OF ACKNOWLEDGMENT OF ATTORNEY-IN-FACT UNDER PHILIPPINE LAW

In the Philippines, an Affidavit of Acknowledgment of Attorney-in-Fact, often simply referred to as an Acknowledgment of Authority or Acknowledgment of Power of Attorney, is a legal document executed to affirm and confirm the authority conferred by one person (the principal) upon another person (the attorney-in-fact) pursuant to a Special Power of Attorney (SPA). This affidavit, though sometimes combined with the execution of the SPA itself, can also stand alone to definitively record the principal’s acknowledgment and acceptance of the attorney-in-fact’s appointment and powers.

Below is a meticulous examination of the legal framework, procedural requirements, and best practices relevant to drafting and notarizing an Affidavit of Acknowledgment of Attorney-in-Fact in the Philippines.

1. Governing Laws and Rules

  1. Civil Code of the Philippines (Republic Act No. 386):

    • Articles 1868 to 1872 of the Civil Code cover the general provisions on agency and the establishment of authority for the attorney-in-fact. These provisions outline how a principal may confer power upon another, as well as the nature of such an agency relationship.

  2. Rules on Notarial Practice (A.M. No. 02-8-13-SC):

    • The Supreme Court’s Rules on Notarial Practice specify the requirements and guidelines for the notarization of documents, including affidavits. For an affidavit to be notarized, the affiant must personally appear before a notary public and present valid government-issued identification documents. The notary public then certifies that the affiant acknowledged the contents of the affidavit as his or her free and voluntary act.

  3. Special Power of Attorney vs. General Power of Attorney:

    • Under Philippine law, a Special Power of Attorney grants authority to the attorney-in-fact to carry out specific transactions or acts on behalf of the principal. By contrast, a General Power of Attorney may confer broader authority over the principal’s affairs. An affidavit acknowledging an attorney-in-fact’s authority typically references the SPA, indicating the scope and limits of that authority.

  4. Notarial Requirements and Validity:

    • The affidavit must be executed under oath and notarized to be considered a public document and to enjoy presumptive evidentiary value in court proceedings. Failure to adhere to the notarial formalities, such as personal appearance or accurate presentation of identity, may render the affidavit’s validity questionable.

2. Purpose and Importance of the Affidavit

  1. Evidentiary Value:

    • A notarized affidavit serves as evidence of the truth of its contents. Should disputes arise, courts generally accord weight to a validly notarized document. Therefore, the acknowledgment portion solidifies the principal’s confirmation that the attorney-in-fact is duly authorized.

  2. Protecting the Principal and Third Parties:

    • By executing this affidavit, the principal demonstrates in writing that he or she fully understands and voluntarily agrees to designate a representative. This clarity safeguards third parties dealing with the attorney-in-fact, ensuring they have documented proof of the agent’s authority to act.

  3. Establishing Clear Parameters for Authority:

    • The affidavit can also outline the specific parameters of the authority delegated. When referencing the SPA within the affidavit, the principal reiterates the limited nature of the authority (or the broad coverage, if it is indeed broad) granted to the attorney-in-fact.

3. Components of an Affidavit of Acknowledgment of Attorney-in-Fact

  1. Title and Caption:

    • The affidavit should begin with a clear title (e.g., “Affidavit of Acknowledgment of Attorney-in-Fact”) and a caption indicating the jurisdiction (e.g., “Republic of the Philippines, City of ____, S.S.”).

  2. Introduction of the Affiant:

    • The person executing the affidavit (the principal) must provide personal details: full name, age, civil status, citizenship, and residence. This portion is crucial to establish the affiant’s identity.

  3. Reference to the SPA:

    • The affidavit should explicitly mention the SPA, including details like its date of execution, the parties involved, and the specific powers granted to the attorney-in-fact. If the SPA was notarized previously, reference to the notarial details (document number, page number, notary public’s name, etc.) should be included.

  4. Affirmation or Acknowledgment of Authority:

    • The affiant must state that he or she acknowledges and confirms the appointment of the attorney-in-fact to carry out the acts specified in the SPA. The principal must also declare that the powers conferred upon the attorney-in-fact remain effective, subject to any conditions or revocations stated in the SPA.

  5. Voluntariness and Capacity:

    • The affiant should state that the execution of the affidavit is voluntary and that the affiant is of sound mind, not under duress or undue influence, and understands the legal significance of acknowledging the attorney-in-fact’s authority.

  6. Signature and Notarization:

    • The affiant must sign the affidavit in the presence of a notary public, who must then administer the oath. The notary’s seal and signature, along with the notarial details, complete the formalities.

4. Procedural Steps in Preparing and Notarizing the Affidavit

  1. Drafting the Document:

    • The principal or his/her legal counsel prepares the affidavit, ensuring all essential elements are included and that the language accurately reflects the SPA.

  2. Review for Accuracy and Completeness:

    • The principal must carefully review the affidavit to confirm that it matches the terms of the SPA and that any references to authority, scope, and conditions are consistent.

  3. Personal Appearance Before the Notary Public:

    • Under the Rules on Notarial Practice, the principal must appear in person before the notary public to sign the affidavit under oath. A valid identification card, such as a passport or driver’s license, must be presented.

  4. Oath and Acknowledgment:

    • The notary public administers the oath to the affiant, who then confirms the truth of the contents. The notary certifies that the affidavit is signed in his or her presence and acknowledges the identity of the affiant.

  5. Recording in the Notarial Register:

    • The notary public records the instrument in the notarial register, assigning a document number, page number, book number, and series of the year, as required by Philippine notarial rules.

5. Common Pitfalls and How to Avoid Them

  1. Failure to Appear Personally:

    • Avoidance: The principal must personally appear before the notary public. Failure to do so invalidates the notarization. Ensure the principal’s availability or designate a proper procedure if residing abroad (e.g., visiting the Philippine consulate for acknowledgment).

  2. Inconsistent Details With the SPA:

    • Avoidance: Always ensure that the information contained in the affidavit (e.g., date, scope of authority, identity of parties) matches the original SPA and any subsequent amendments.

  3. Lack of Proof of Identity:

    • Avoidance: The principal should have at least one current, valid government-issued ID with a photograph and signature. Notaries are strict about verifying identities to prevent fraud.

  4. Misunderstanding the Extent of the Attorney-in-Fact’s Power:

    • Avoidance: The principal must grasp the legal consequences of conferring authority on another person. The affidavit must align with the exact nature of powers in the SPA.

  5. Failure to Adhere to Local Notarial Rules:

    • Avoidance: Each city, municipality, or region in the Philippines adheres to the same national Rules on Notarial Practice, but local notaries may have specific administrative requirements. Stay updated on any local issuances.

6. Special Considerations

  1. Overseas Execution of Affidavits:

    • A principal residing abroad may execute the affidavit before a Philippine consular official. The same requirements of personal appearance and valid identification apply, but the consular official acts as the notary public, and the document is typically referred to as “Consularized.”

  2. Translation and Language Issues:

    • Philippine law does not strictly require documents to be in Filipino or English, but these are the most common languages. If the principal does not speak or read English or Filipino, the notary public must use an appropriate interpreter or perform the “read-aloud” rule to ensure full comprehension.

  3. Legalization and Apostille:

    • If the affidavit is executed abroad and intended for use in the Philippines, it may require apostille certification or consular legalization, especially if the jurisdiction of execution is not party to the Apostille Convention.

  4. Revocation or Amendment:

    • It is possible to revoke or amend the authority in the SPA, which the affidavit acknowledges. The principal may execute a separate revocation document if needed. All subsequent acts by the attorney-in-fact after revocation, if undisclosed to third parties, may pose legal complications, so clarity and notice are essential.

7. Template: Affidavit of Acknowledgment of Attorney-in-Fact

Below is a general template for an Affidavit of Acknowledgment of Attorney-in-Fact under Philippine law. This template is for reference purposes only and may require adjustments based on specific circumstances or legal advice.

Republic of the Philippines   )
______________________        ) S.S.

                           AFFIDAVIT OF ACKNOWLEDGMENT
                               OF ATTORNEY-IN-FACT

I, [Name of Affiant], of legal age, [civil status], [citizenship], and residing at [Address of Affiant], after having been duly sworn to in accordance with law, do hereby depose and state that:

1. I am the principal in a certain Special Power of Attorney (SPA) executed on [Date of SPA], in [Place of Execution], granting authority to [Name of Attorney-in-Fact], which SPA was notarized by Notary Public [Name of Notary Public] as Doc. No. ___; Page No. ___; Book No. ___; Series of ___ (if applicable).

2. Pursuant to the terms of the said SPA, I have empowered [Name of Attorney-in-Fact] to perform the following acts on my behalf, among others: [List the specific powers or refer to the SPA for the detailed scope of authority].

3. I hereby expressly acknowledge the said Special Power of Attorney and affirm my intention to be legally bound by the provisions thereof. I further acknowledge and confirm that [Name of Attorney-in-Fact] is authorized to act on my behalf under the terms of the SPA.

4. I confirm that I am executing this Affidavit of Acknowledgment voluntarily, without any intimidation, undue influence, or pressure from any party, and with full understanding of the legal consequences of this acknowledgment.

5. I attest that I possess full legal capacity to execute this affidavit, and that I am not suffering from any legal disability that would prevent me from entering into contractual or agency relationships.

6. I am executing this affidavit to declare, under oath, that I fully recognize and ratify all acts lawfully done by my attorney-in-fact in accordance with the SPA.

IN WITNESS WHEREOF, I have hereunto set my hand this __ day of __________ 20__, in the City/Municipality of __________________, Philippines.

  
  _____________________________
         [Signature of Affiant]
  [Name of Affiant in Print]

SUBSCRIBED AND SWORN to before me this __ day of __________ 20__, affiant personally appeared and presented [Type of Valid ID, ID Number, Date of Issue], bearing his/her photograph and signature, and who is personally known to me or identified by me through competent evidence of identity.

Doc. No. ___;
Page No. ___;
Book No. ___;
Series of ___.

8. Best Practices and Final Considerations

  1. Legal Counsel:

    • While the affidavit can be drafted by the principal, it is always prudent to seek legal counsel, particularly for complex transactions. A lawyer ensures that the language is precise and that no crucial stipulations are omitted.

  2. Consistency with Other Legal Documents:

    • Ensure that all related documents—such as deeds, sales contracts, or other agreements—are consistent with the powers granted in the SPA and acknowledged in the affidavit. Contradictory terms can lead to legal disputes.

  3. Record-Keeping:

    • The principal must retain the original notarized affidavit for future reference. Certified copies may be needed for presentation to government agencies, financial institutions, or courts.

  4. Periodic Review:

    • If the scope of authority or the conditions in the SPA change, the affidavit may need to be updated or re-executed. Regularly reviewing the document ensures it remains aligned with the principal’s current intentions.

  5. Awareness of Limitations:

    • Certain acts (e.g., marriage, making or revoking a will, or performing acts that require a person’s personal qualifications) are inherently personal and cannot be delegated by an SPA. The principal should be aware of these limitations to avoid invalid transactions.

Conclusion

An Affidavit of Acknowledgment of Attorney-in-Fact is a powerful instrument under Philippine law, serving to reinforce and validate the authority granted to an attorney-in-fact in a Special Power of Attorney. Its significance lies not only in its evidentiary value but also in its ability to protect the principal, the attorney-in-fact, and third parties involved in the transactions. By carefully drafting the affidavit, following notarial protocols, and adhering to the best practices outlined above, one ensures that the acknowledgment is legally sound and capable of withstanding scrutiny in Philippine courts or other venues where the document’s validity might be challenged.

When preparing or using an Affidavit of Acknowledgment of Attorney-in-Fact, it is always advisable to consult a qualified lawyer for personalized guidance, especially in transactions involving significant assets or complex legal relationships. Notarial rules in the Philippines are enforced with precision, and mistakes may render the affidavit less reliable or even invalid. Hence, due diligence, personal appearance before the notary, and strict compliance with legal formalities remain the cornerstones of a properly executed affidavit.

Ultimately, a methodical and well-prepared Affidavit of Acknowledgment of Attorney-in-Fact, coupled with a validly executed SPA, fosters certainty and clarity in various undertakings—whether in property transactions, financial dealings, or other significant legal matters—ensuring all parties can rely on the attorney-in-fact’s authority without hesitation or doubt.

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

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