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Power of appointment is a term used in law to mean the power given to someone to determine how property or assets will be shared at some point in the future. Thus, an individual with such authority can assign who gets the property and any conditions on it. The same applies to the power of appointment, which can be found in various legal settings, including wills, trusts, and estate administration. By doing this, it ensures that one has more options and greater control over how their investments are distributed thereby enabling them to respond to different circumstances or meet the needs and wishes of intended beneficiaries. This post will explain everything you need to know about the power of appointment, its legal framework, types, and much more.
Legal Structure for Granting Power of Appointment
The power of appointment is primarily governed by general law principles and statutes. However, some basic laws are common despite the differences across jurisdictions. Normally, the legal framework involves three fundamental ideas: the donor, the power holder, and permissible appointees.
- Donor: The creator of a power of appointment is commonly referred to as a donor and usually establishes a trust or writes a will. The donor must state their intention regarding the extent and terms of this power, including any limits or requirements.
- Power Holder: The donee, also known as Power Holder, refers to an individual granted powers under a deed. Such a person can have the authority to allocate beneficiaries or divide properties covered by such powers. In some cases, these powers may reside in either the same donor/creator (person) or differ from them.
- Permissible Appointees: They are prospective recipients/beneficiaries who can be appointed under power. Donors may define various classes comprising eligible appointees, including relatives, charitable foundations, or unborn generations as well. Otherwise among them, the donee will decide on how it should eventually be shared out.
Major Points to Consider in Creating a Power of Appointment
The formation of a power of appointment usually has to do with the following considerations:
- Intent: The donor establishing the power of appointment must show that they intended to give someone else powers over the distribution of property.
- Capacity: For a donor’s will or trustor’s estate plan to include a power of appointment, they must be mentally competent and not legally incapacitated.
- Legal Document: A will, trust, or other writing would generally contain this authority. It is only when this document expressly states all rights as well as duties attached to that position of power.
- Ascertainable Beneficiaries: This means the class of beneficiaries who are eligible beneficiaries under the power. Vagueness or overbreadth may invalidate any such broad-based powers.
- Permissible Subject Matter: The authority given to the fiduciary should cover assets that can be legally alienated without being forbidden by any conventional restrictions.
- Signature and Witnesses: Where there has been no provision for substituting an attestation clause for testamentary witnesses, it is necessary that, when granting power through a written instrument like a will, this instrument be executed by the testator in the presence of at least three witnesses who are not relatives or interested parties. Some jurisdictions may require more than one witness, while others may need just one person attending.
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Types of Power of Appointments
The common types of power of appointment are:
- General Power of Appointment: With a variety of possibilities, the general power of appointment furnishes the power to assign assets to oneself, their estate, or any person he desires. In addition, assets that are subject to a general power of appointment are considered part of the appointor's estate for tax and other purposes. It gives you the maximum flexibility in directing the disposition of property.
- Limited Power of Appointment: Unlike a general power of appointment, a limited power imposes some restrictions on an appointor’s authority. Moreover, the donor can only distribute assets among specific categories or within prescribed limits set by the instrument creating such powers. A limited power allows some control over asset distribution while ensuring some level of certainty.
- Testamentary Power of Appointment: A testamentary power is created if it is provided in the appointor’s will and takes effect upon his death. This type enables directions for distribution among named beneficiaries while still providing flexibility to change plans until death. This ability allows interview powers to be changed when circumstances necessitate such action.
- Inter Vivos Power of Appointment: On the other hand, unlike testamentary powers, inter vivos powers occur during a lifetime apart from when they emanate from Wills as well as trust documents. Similarly, this might be conferred through various legal instruments like trust agreements or separate documents for power of appointment. The inter vivos create room for flexibility in case an individual wants something else done after it is already in place.
- Special Power of Appointment: Another example is special powers where one has authority to deal with properties within certain defined bounds or among particular classes only. Instead, these must go to a specified group or individuals, whereas those exercising general ones don’t have similar constraints in terms of who can benefit from them. Such sort is usually used strategically so that individual persons could be catered for or certain estate plans fulfilled.
Key Terms for the Power of Appointment
- Donor: An individual who gives the power of appointment and transfers his ownership to decide how the property will be distributed to the holder.
- Permissible Appointees: People or groups that may be appointed by the holder, as defined in terms of the power of appointment
- Exercising Power: Validly appointing where a holder acts according to the terms specified in the power to appoint and distribute property.
- Lapse: Not exercising such powers within time or proper legal requirements results in alternative beneficiaries or default provisions acquiring ownership from another person
- Release: The voluntary surrendering or transfer of power by an appointer that takes away their ability to determine the distribution of property.
- Trust: A legal trust is created when a trustee manages property on behalf of beneficiaries and can involve the power to distribute trust assets, otherwise known as a trust’s exercise of power.
- Estate Planning: Arranging one's assets and wealth during a lifetime so that they are efficiently distributed with minimal tax implications, which may incorporate using powers of appointment.
Final Thoughts on the Power of Appointment
The power of appointment is a game changer in estate planning, trusts, and wealth management. It enables people to have endless options like improvement in flexibility, minimizing tax liabilities, or allocation of assets for charitable purposes. However, utilizing this right calls for scrutinizing legal terms, possible vulnerabilities, and family ties meticulously. The implications of powers of appointment will only be understood by individuals who want to make sound choices about long-term goals concerning valuable property division.
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ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.
