Definition
A power of appointment is an authority conferred by one person (the donor) upon another (the donee) to select and designate who will receive a specific property, estate, or fund — either outright or in the form of income. The power is typically created by deed or will. The donor establishes the power; the donee exercises it; and the persons ultimately selected to receive the property are called the appointees or objects of the power.
The power does not transfer ownership to the donee. Rather, it gives the donee authority to direct where property will go. The donee may or may not have any beneficial interest in the property subject to the power. Where the donee fails to exercise the power, the property typically passes according to a default provision in the instrument that created the power, or — if none exists — back to the donor's estate.
Three parties are central to every power of appointment:
Donor — the person who creates the power, usually in a trust instrument or will.
Donee — the person who holds the power and may exercise it.
Appointee(s) — the person or persons selected by the donee to receive the property.
A fourth category — the taker in default — describes whoever receives the property if the donee fails to exercise the power or exercises it defectively.
Common Language
Wiktionary: "In the law of wills, the ability of a testator to select a person who will be given the authority to dispose of certain property under the will."
Editorial note: The Wiktionary definition captures one common use but narrows the concept in two ways that matter for legal research. First, powers of appointment arise not only in wills but frequently in inter vivos trusts and deeds. Second, the definition collapses the donor and donee into a single figure — the testator — when in practice the donee is nearly always a different person who exercises the power after the donor's death. Researchers relying on the common definition may miss the three-party structure that drives most legal analysis of these instruments.
Common Confusion
Power of appointment vs. power of attorney: These are entirely distinct legal instruments. A power of attorney authorizes an agent to act on behalf of the principal — typically in business, financial, or personal affairs — during the principal's lifetime. A power of appointment is an authority over property disposition, typically exercised after the donor's death, and arises in the law of trusts and estates rather than agency law. The word "appointment" in power of attorney refers to appointing an agent; in power of appointment it refers to designating property recipients. Historical sources sometimes use the unqualified term "power" to mean power of appointment in context, which can compound confusion.
Power of appointment vs. power coupled with an interest: A power coupled with an interest is an agency concept — a power that accompanies an actual property interest in the thing over which the power is exercised, making it irrevocable. This is a separate doctrine from power of appointment, though historical legal dictionaries occasionally treat them in proximity. Black's (1st Ed.) addresses the distinction directly: "the power must be engrafted on an estate in the thing." Researchers working in historical sources should be alert to this proximity.
Recognized Forms
/SUBTYPES
General power: A power exercisable in favor of anyone the donee chooses, including the donee herself, her creditors, her estate, or the creditors of her estate. A general power is the broadest form and carries significant tax consequences in modern practice.
Special (or limited) power: A power exercisable only in favor of a defined class of persons designated by the donor — typically the donor's descendants or a named group. The donee cannot appoint to herself or to persons outside the class.
Collateral power: A power held by a donee who has no estate or interest in the property subject to the power. The donee's only relationship to the property is the authority to direct its disposition.
Power in gross: A power held by a donee who has an independent interest in the property — such as a life estate — but whose power of appointment is separate from that interest.
Power appendant (or appurtenant): A power held by a donee whose appointment can affect and interact with the donee's own existing estate in the property.
Power in trust: A power where the donee is obligated to exercise it — the donee holds the power for the benefit of a designated person or class rather than purely at discretion. Courts may enforce a power in trust even where the donee fails to act.
Why It Matters in Research
Terminology shifts across eras. Pre-twentieth-century sources, including both editions of Black's, use "collateral," "appendant," and "appurtenant" as the primary taxonomy. Modern estate planning literature and the Restatement (Third) of Property use general/special as the organizing framework, largely because of the federal estate and gift tax implications that now dominate the field. A researcher working in historical cases will encounter the older vocabulary and may not find it mapped cleanly onto modern categories.
The Rule Against Perpetuities is the most consequential structural connection for corpus research. Whether and when a power of appointment is exercised can determine whether future interests created by the exercise are valid under the Rule. This analysis differs depending on whether the power is general or special, and the answers shifted further with the adoption of the Uniform Statutory Rule Against Perpetuities and, subsequently, the repeal or suspension of the Rule in many states. Researchers must locate their primary sources within the correct temporal and jurisdictional framework before applying any perpetuities analysis. See estates_114 for the encyclopedia treatment.
Watch for the tax overlay in sources after the mid-twentieth century. The Internal Revenue Code's treatment of general powers of appointment — particularly inclusion of property subject to a general power in the donee's gross estate — fundamentally changed how practitioners draft and exercise these powers. Post-1942 sources on powers of appointment are frequently shaped by tax strategy as much as by property doctrine. Historical sources predate this overlay entirely.
Creditors' rights is a recurring research trap. Whether a donee's creditors can reach property subject to a general power of appointment varies by jurisdiction and has evolved significantly. Sources that treat the question as settled are often speaking to a specific jurisdiction at a specific moment.
Historical Dictionary Support
Both editions of Black's offer essentially the same core definition: a power or authority conferred by one person by deed or will upon another to select and nominate persons who will receive an estate or income from a fund. The 2nd Edition adds a citation to Heinemann v. De Wolf — one of the rare instances where Black's sources a proposition directly — which confirms the donee-as-selector framework.
Both editions identify collateral powers as the first formal subtype, consistent with the English property law tradition from which the doctrine descends. The treatment of "power in trust" in Black's (1st Ed.) is instructive: a general power is in trust when any person or class other than the grantee is designated as entitled to the proceeds. This formulation is narrower than how modern courts and scholars use the term, and researchers should not assume historical and modern definitions of "power in trust" are interchangeable.
Neither edition engages meaningfully with the tax dimension, which is expected given their vintage. Neither addresses the Rule Against Perpetuities in connection with powers of appointment with any depth — that analysis developed substantially in twentieth-century case law and commentary. For these structural gaps, the historical dictionaries are starting points, not endpoints.
Jurisdictional Note
The treatment of powers of appointment — particularly the rights of creditors against property subject to an unexercised general power — varies significantly across states. Some states follow common law rules; others have enacted statutes expressly governing creditor access. The perpetuities analysis applicable to powers of appointment also varies, as states have adopted different versions of reform legislation or abolished the Rule entirely.
Encyclopedia Cross-Reference
estates_114: Powers of Appointment and the Rule Against Perpetuities (The Law Mind Trusts, Estates & Probate Encyclopedia) — primary reference for perpetuities analysis and the interaction between power exercise and future interests.
constitutional_27: The Appointment Power — Principal Officers, Inferior Officers, and Employees (The Law Mind Constitutional Law Encyclopedia) — note that this entry addresses the constitutional appointments clause, a wholly separate doctrine. Researchers should confirm context before following this cross-reference.