Define: Mere Power

A mere power refers to a legal authority granted to an individual or entity allowing them to make decisions or take certain actions regarding property or assets, but without creating a legal obligation to do so. Unlike a trust or fiduciary duty, a mere power does not impose a duty or obligation on the holder to exercise the power in any particular manner. Instead, the holder of the mere power has discretion to use it as they see fit, including choosing not to exercise it at all. The grantor of the power may specify guidelines or preferences for its exercise, but ultimately, the decision lies with the holder. Mere powers are commonly found in legal documents such as wills, trusts, or other estate planning instruments, and may be used to provide flexibility or facilitate future changes without creating binding obligations. The holder of a mere power may choose to exercise it based on their own judgment or in response to changing circumstances, but they are not required to do so.

A power of appointment where there is no duty that it be exercised. This is sometimes distinguished from both a discretionary trust (also known as a ‘trust power’) and a ‘power in the nature of a trust’, where there is such a duty. Although the holder (or ‘donee’) of this power cannot be compelled to exercise it, he may sometimes be forced to consider doing so. Also known as a ‘collateral power’.

See also discretionary trust.

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 29th March, 2024.