Article 381. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary.
This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. (181a)
Article 382. The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians. (182)
Article 383. In the appointment of a representative, the spouse present shall be preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. (183a)
Notes:
1) Definitions.
a. Absentees – refers to individuals or natural persons who have disappeared from their domicile with their whereabouts are unknown and there is no agent to administer their property. (Civil Code, Article 381)
b. Interested party – for absentee purposes, refers to any person who may have any interest on the person and/or the property/business of the absentee.
c. Relative – for absentee purposes, refers to individuals or natural persons who are related by blood to the absentee. (NB: The provision did not specify whether it is limited to the third or fourth civil degree.)
d. Friend – for absentee purposes, refers to any individuals or natural persons who have a good, trusted, and friendly relationship with the absentee. (NB: For practical purposes, the judge may require that the petitioner-friend show some proof of the friendship, such as shared history with the absentee – e.g. neighbors, went to same school, worked at same companies, etc.)
2) Rules on court-appointed representatives of absentees.
a. Who may file the petition. The petition for court-appointment of a representative of an absentee may be initiated by:
(a) Interested party;
(b) Relative; or
(c) Friend.
b. Appointment by a court. The judge may act on the petition by appointing a representative for the absentee.
c. Safeguards. In issuing court orders, the judge shall take the necessary measures to safeguard the rights and interests of absentee, such as:
(1) Specifying the powers of the representatives;
(2) Listing the obligations of the representatives;
(3) Providing for the remuneration of the representatives;
(4) Regulating the powers, obligations, and remuneration according to the circumstances following the rules on guardianship.
d. Order of priority in choosing representative. The following is the order of priority in choosing a court-appointed representative for an absentee:
(1) Spouse – preferred, unless there is a legal separation; or
(2) Any competent person.
NB: Even if there is a legal separation, it is still possible for a spouse to be designated as the court-appointed person as the spouse may still qualify as a competent person. There is only preference for a spouse if there is no legal separation; it does not completely rule out the spouse. However, if there is legal separation, the spouse stands in the same footing with any other competent person when the court is deciding.
References
• Title XIV – Absence, Book I, Civil Code
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/Updated: April 23, 2023
