How “General Power of Appointment” is Defined - Commentary to Florida Trust Code

Legal Commentary on the Definition of “General Power of Appointment”

Fla. Stat. § 736.0103(10) defines the term “general power of appointment.” The text of the subsection reads:

“General power of appointment” means a power of appointment exercisable in favor of the holder of the power, the power holder’s creditors, the power holder’s estate, or the creditors of the power holder’s estate.

A power of appointment is the authority to designate who will receive certain property or the benefit of that property. A power of appointment can be limited. For example, someone might be given the power to choose which of his children will receive a certain parcel of real estate. A general power of appointment is a power of appointment that could potentially be used for all four of the purposes listed in the definition above. If the power is limited in such a way that it cannot be used in favor of the holder, in favor of the holder’s creditors, in favor of the holder’s estate, or in favor of the creditors of the holder’s estate, then the power of appointment would be considered “nongeneral”.

History of the Definition of “General Power of Appointment”

The term “general power of appointment” has been consistently defined since the Florida Trust Code took effect in 2007. However, the placement of the definition has changed multiple times. For example, the term was originally found in Fla. Stat. § 736.0103(7).

The 2005 Final Committee Draft of the Florida Trust Code alleges that the definition for “general power of appointment” was taken from the “Restatement (Second) of Property section 11.4(1) with stylistic revisions.” However, in reality, the definition was taken word-for-word from the commentary to § 103 of the Uniform Trust Code, which used Restatement (Second) of Property section 11.4 as its source.

This article is part of the PTM Legal Commentary to the Florida Trust Code. Click here to navigate through the entire commentary.