Powers

• Author: EILEEN E. GILLESE
• Pages: 21-35

21

CHA PTER 2

POW ER S

A. INTRODUCTION

The trust can be a useful legal device, as Chapter 1 makes clear. The

challenge when creating a tr ust is to ensure that it is useful in practice.

One way to make sure that a t rust is f‌lexible and can be used effectively

is to invest the tru stee with suitable powers. A power is the authority

to do any act that the grantor might him- or herself lawfully perform.

The types of powers a tr ustee needs to perform the terms of the trust

properly and eff‌iciently are outlined in Chapter 10.

Powers may exist independently of tr usts; they are a separate legal

construct, with t heir own advantages and dis advantages. They must be

understood at a broad conceptual level as well as at a more detailed level.

Often the f‌irst question to be an swered is whether a trust or a power is

the best legal tool to use to achieve a part icular purpose. If t he deci-

sion is made to use a trust, then the next decision must be the powers

the trustee may need to perform the trust. The f‌irst question is a broad

conceptual one: trust or power? If a trust is found to be preferable, then

powers are considered as ancill ary to the dominant legal tool, the t rust.

In this chapter I consider powers at t he conceptual level: the overall

nature of a power as disti nguished from a trust. In Chapter 10, I look at

powers when they are attached to trusts; that is, I consider powers not

as a separate legal constr uct but as ancillary to the t rust.

The one overriding reason to exa mine the concept of powers in a

book on trusts is t hat one particular ty pe of power, a power of appoint-

ment, appears to be very sim ilar to a discretionary trust. Yet the conse-

quences of creating one or the other are marked ly different. Not only is