Article on the UPAA & Its Authority

Alexander A. Bove, Jr. recently published an Article entitled, Don’t Be Shy About Using a Naked Power of Appointment, Tr. & Est. (Dec. 2016). Provided below is a summary of the Article:

Few, if any, of us in the estate-planning profession would question the value and flexibility of the power of appointment (POA). The late Professor W. Barton Leach called it, “the most efficient dispositive device that the ingenuity of Anglo-American lawyers has ever worked out.” Thus, we all eagerly awaited the result when the Committee appointed by the Uniform Law Commission undertook to review and restate the law to produce the Uniform Power of Appointment Act (UPAA). 

As one would hope, such an important undertaking would not only consider the settled and basic principles and practices of the law, but also the need to set aside antiquated rules that hinder, rather than help, the application and objectives of the law. A perfect example of this is the Uniform Trust Code (UTC), enacted in most jurisdictions, which made significant changes to trust law, modernizing decades-old “traditional” rules, such as the termination of a trust and the removal of a trustee and bringing in the “non-judicial settlement,” all of which is testimony to the open-mindedness and excellent work done by the Committee. 

Contrast this with the Committee that developed the UPAA. Since the Committee promulgated its final version of the Act in 2013, there have been several negative reactions by practitioners, including at least one law review article, based on the Restatement (Third) Property, which was basically mimicked by the UPAA Committee, so virtually all of the comments in that article apply as well to the UPAA.