The logic, and it is sound
A power of appointment lets its holder decide who ultimately takes trust property. If your interest can be redirected away from you entirely at that person’s choice, the Code takes the view that they can also speak for you on smaller matters.
The holder of a power of appointment may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.
Section 736.0302(1), Florida Statutes.
The greater includes the lesser. Someone who could eliminate your interest can consent on your behalf to an accounting, a change of administration, or a settlement.
Subsection (2) extends the same reasoning one step down the chain. The takers in default, meaning those who take if the power is never exercised, may represent and bind the permissible appointees whose interests are subject to it.
The two carve outs
Representation of this kind creates an obvious risk. The person with the power may have interests of their own. The section addresses that twice.
Subsection (1) does not apply to:
(a) Any matter determined by the court to involve fraud or bad faith by the trustee; or
(b) A power of appointment held by a person while the person is the sole trustee.
Section 736.0302(3), Florida Statutes.
Paragraph (b) is the important one and it is well aimed. A sole trustee who also holds a power of appointment would otherwise be able to represent the very people to whom they owe fiduciary duties, and to consent on their behalf to their own conduct. The statute stops that. Note that it operates while the person is sole trustee, so the disqualification comes and goes with the office.
Subsection (4) closes a related gap.
As used in this section, the term “power of appointment” does not include a power of a trustee to make discretionary distributions of trust property.
Section 736.0302(4), Florida Statutes.
Without that, every trustee of a discretionary trust would hold something that looked like a power of appointment over every beneficiary, and could represent all of them. See section 736.0504 for how wide those discretionary powers can be.
The asymmetry, which we think is deliberate
Here is something worth noticing, because it is easy to read past. Subsection (3) disapplies subsection (1). It does not mention subsection (2).
On the face of the statute, that means the fraud carve out and the sole trustee carve out govern representation by the holder of a power, and not representation by the takers in default. A taker in default who is also the sole trustee is not, by the terms of this section, disqualified from representing the permissible appointees.
We are not going to tell you what a court would make of that. No court has considered it, and there is a respectable argument that the drafting is precise rather than accidental, since a taker in default holds no power to redirect anything and so presents a different risk. But if you are relying on representation by takers in default where the trustee’s conduct is in question, it is the first thing the other side will read.
No Florida court has cited this section
A search returns no documents at all. The section was amended once, in 2009, and has never been construed.
So the open questions include the one above, and also how a court decides that a matter involves fraud or bad faith by the trustee, given that the determination is what triggers the carve out and the carve out is what would let the represented person be heard.
Frequently Asked Questions
Who can a power of appointment holder represent?
Persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power. The logic is that someone who can direct the property away from you altogether can speak for you on lesser questions.
Can takers in default represent anyone?
Yes. Subsection (2) provides that the takers in default of the exercise of a power of appointment may represent and bind persons whose interests, as permissible appointees, are subject to the power.
Are there exceptions?
Two. Subsection (1) does not apply to any matter the court determines to involve fraud or bad faith by the trustee, or to a power of appointment held by a person while that person is the sole trustee.
Does a trustee's power to make distributions count as a power of appointment here?
No. The section says expressly that for its purposes the term does not include a power of a trustee to make discretionary distributions of trust property. Otherwise every discretionary trustee could represent every beneficiary.
Do the exceptions apply to takers in default as well?
On the face of the statute, no. Subsection (3) disapplies subsection (1) only. We flag that below because it appears to be deliberate and no court has considered it.
Common Situations
Someone holds a power over your interest. They may be able to consent on your behalf under this section.
The sole trustee also holds the power. Subsection (3)(b) disqualifies them while they hold that office.
A trustee claims a discretionary power lets them represent you. Subsection (4) says a discretionary distribution power is not a power of appointment here.
Fraud or bad faith is alleged against the trustee. That carve out applies to holders, and on its face not to takers in default.
Sources of Law
- Section 736.0302, Florida Statutes (2025). Enacted by s. 3, ch. 2006-217; amended by s. 3, ch. 2009-117.
- Section 736.0301, Florida Statutes, which supplies the effect of representation.
- Section 736.0103, Florida Statutes, for the definitions of general power of appointment and power of withdrawal.
- No Florida appellate decision has construed any of sections 736.0301, 736.0302, 736.0303 or 736.0305. Each returned zero citing documents across every Florida court and every precedential status we searched.
- Our review searched the Florida Supreme Court, the Florida District Courts of Appeal, the Florida federal district courts, the Florida bankruptcy courts and the Eleventh Circuit on August 15, 2026, requesting every precedential status rather than the default view. We report a nil result as our own review and not as a certainty, and we confirm that a section number actually appears in a decision before relying on it, having now found two search results for statutes whose numbers appear nowhere in the opinions returned.
- Decisions discussed here are published opinions in other parties’ cases. They are not matters handled by this firm and they predict nothing about any reader’s case. No commercial citator pass has been run on this research.
Updated on August 15, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law and published court decisions, not legal advice, and no attorney-client relationship is created. Reading this page does not make us your lawyers. Please do not send confidential details until we have connected.
