A. A power of appointment is created only if:
(1) the instrument creating the power:
(a) is valid under applicable law; and
(b) except as otherwise provided in Subsection B of this section, transfers the appointive property; and
(2) the terms of the instrument creating the power manifest the donor's intent to create in a powerholder a power of appointment over the appointive property exercisable in favor of a permissible appointee.
B. Subparagraph (b) of Paragraph (1) of Subsection A of this section does not apply to the creation of a power of appointment by the exercise of a power of appointment.
C. A power of appointment shall not be created in a deceased individual.
D. Subject to the provisions of Section 45-2-901 NMSA 1978, a power of appointment may be created in an unborn or unascertained powerholder.