Powers

• Author: Eileen E. Gillese, Martha Milczynski
• Pages: 19-33

19

CHAPTER 2

POWERS

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 th at a trust is f‌lex ible and can be used ef fectively

is to invest the trustee 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 trustee needs to perform the terms of the trust

properly and eff‌iciently are outlined in chapter 10.

Powers may exist independently of trusts; they are a separate legal

construct, with their own advantages and disadvantages. They must

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

level. Often the f‌irst question to be answered is whether a trust or a

power is the best legal tool to use to achieve a particular purpose. If

the decision 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 pref-

erable, then powers are considered as ancillary to the dominant legal

tool, the trust.

In this chapter we consider powers at the conceptual level: the

overall nature of a power as distinguished from a trust. In chapter 10

we look at powers when they are attached to trusts; that is, we consider

powers not as a separate legal construct, but as ancillary to the trust.