Also known as: powers to appoint · power of appointment · powers of appointment
Written by attorneys · grounded in primary & secondary sources — see below
An authority granted by a donor that empowers a donee to designate recipients of property subject to the power. The authority may be general, allowing appointment to anyone including the donee or the donee's estate, or special, restricting appointees to a defined class. Exercise occurs when the donee manifests intent to direct the property in accordance with the creating instrument.
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Patricia Patel creates a trust for her niece Portia Price and grants Portia the right to withdraw all principal at any time by written request. The trust instrument requires written consent from the trustee before any withdrawal occurs. Because the consent condition prevents the power from qualifying as presently exercisable without third-party approval, Portia holds no power of withdrawal under the governing definition.
Preston Pratt establishes a trust naming his daughter Piper Patel as beneficiary and grants her authority, in a capacity other than trustee, to direct distribution of trust assets among designated family members. Piper exercises the authority by directing the trustee to transfer principal to her son. The grant qualifies as a power of appointment because it is held outside the trustee role and reaches trust property.
Congress enacts a statute creating a new federal commission and provides that the Speaker of the House and President pro tempore of the Senate will appoint a majority of its voting members. The President challenges the statute. The commission members cannot validly exercise executive functions because the appointments clause requires principal officers to be appointed by the President with Senate confirmation.
The Attorney General seeks appointment of an independent counsel to investigate a cabinet official. A special court division appoints the counsel under the Ethics in Government Act. The official challenges the appointment as violating separation of powers. The appointment is upheld because the independent counsel qualifies as an inferior officer whose selection Congress may vest in the courts.
A Florida resident's will exercises a power of appointment over a Delaware trust. Florida courts attempt to adjudicate the validity of the appointment and the trust. The Delaware trustee challenges personal jurisdiction. Florida lacks jurisdiction over the trustee because the trustee's contacts with Florida are insufficient to satisfy due process.
A state legislature passes a statute authorizing the secretary of state to appoint electors after a disputed presidential election. Challengers argue the statute improperly shifts appointment power. The statute is invalidated because the Constitution reserves the power to appoint presidential electors to the state legislature itself, not to executive officials.
A general power permits the donee to appoint to anyone, including the donee or the donee's estate. A special power restricts appointees to a defined class such as descendants or relatives. Creditors of the donee may reach property subject to a general power only upon exercise, while property subject to a special power remains protected.
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A power is presently exercisable when the donee may exercise it immediately without waiting for a future event or condition. Postponed powers become exercisable only upon a specified future occurrence. Testamentary powers may be exercised only by will and therefore are not presently exercisable during the donee's lifetime.
…the executive power of the Government, i. e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed . . . ." Id. , at 117, 163-164. In the later case of…
…principle of separation of powers. 1. The Act does not violate the
…647-649; Doherty & Co. v. Goodman, 294 U. S. 623, 627; Hess v. Pawloski, 274 U. S. 352. The execution in Florida of the powers of appointment under which the beneficiaries and
…U. S. 84 (1978); and over a trustee whose only connection with the forum resulted from the settlor's decision to exercise her power of appointment there, Hanson v. Denckla , 357 U. S. 235 (1958). In such instances, the defendant has had no "clear notice that it is subject to suit" in the forum and thus no opportunity to "alleviate…
…removal restrictions imposed by §§7211(e)(6) and 7217(d)(3) do. Under the traditional default rule, removal is incident to the
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Unappointed property passes according to any default takers named in the creating instrument. If no default takers are named, the property passes to the donee's estate when the power is general. For special powers, the property typically passes to the objects of the power or reverts to the donor's successors.
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No. An exercise of a special power pursuant to a contract that confers a benefit on someone outside the permissible class is invalid in its entirety. The property then passes as though the power had not been exercised.
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No. A signed writing that refuses to exercise the power and directs the property to pass as if the power had never existed constitutes a valid disclaimer. The disclaimer prevents the power from becoming an asset of the disclaimant's estate.
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