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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-PR-0824

PATRICK GARNER, APPELLANT,

V.

THE UNIVERSITY OF TEXAS AT AUSTIN, et al., APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(2021-LIT-000033)

(Hon. Carmen G. McLean, Trial Judge)

(Argued November 29, 2023 Decided June 20, 2024)

Valerie J. Edwards for appellant.

Robert E. Grant, with whom James P. Lillis was on the brief, for appellee The 

University of Texas at Austin.

Heather L. Mehigan for appellees Catholic Relief Services, St. Stephen 

Martyr Catholic Church, and St. Mary of the Assumption Catholic Church and 

School of Texas.
2

Before EASTERLY,

* MCLEESE, and SHANKER, Associate Judges.

SHANKER, Associate Judge: In 2001, John Michael Garner (“the Decedent”1

) 

executed several estate-planning documents, including a trust and a durable general 

power of attorney (“DGPOA”). The Decedent was the beneficiary of the trust during 

his lifetime and he named four charitable entities as beneficiaries after his death. 

The trust document designated the Decedent as trustor and first trustee and 

designated the Decedent’s nephew, appellant Patrick Garner, as successor trustee in 

the event of the Decedent’s unwillingness or inability to serve as trustee. The 

DGPOA appointed Mr. Garner as attorney-in-fact to act on the Decedent’s behalf in 

the event that the Decedent became temporarily or permanently incapacitated and 

gave Mr. Garner broad authority to take any action on the Decedent’s behalf as if 

the Decedent were acting himself.

In 2021, when the Decedent was incapacitated, and without having spoken to 

the Decedent about the matter, Mr. Garner, acting as attorney-in-fact under the 

DGPOA, amended the trust to replace the charitable contingent beneficiaries with 

 

* Associate Judge AliKhan was originally assigned to this case. Following 

her appointment to the U.S. District Court for the District of Columbia, effective 

December 12, 2023, Judge Easterly has been assigned to take her place on the panel. 

See Administrative Order 1-24.

1 References to “Mr. Garner” are to the appellant, Patrick Garner.
3

himself, making him the sole recipient of the trust assets, which at that point totaled 

almost $3,000,000.

After the Decedent died, Mr. Garner brought a declaratory judgment action 

against the beneficiaries seeking a declaration as to the propriety of the amendment. 

The parties cross-moved for summary judgment and the Superior Court granted the 

beneficiaries’ motion, declaring the amendment void as a violation of Mr. Garner’s 

fiduciary duty to the Decedent as attorney-in-fact under the DGPOA and his duty of 

loyalty to the beneficiaries as successor trustee under the trust. The trial court also 

concluded that an exculpatory clause in the DGPOA insulating Mr. Garner from 

claims of breach of fiduciary duty was unenforceable as against public policy.

We assume without deciding—based on the parties’ shared understanding of 

the applicable law—that Mr. Garner, as attorney-in-fact under the DGPOA, owed a 

non-waivable common-law duty to the Decedent to act in accordance with the 

Decedent’s reasonable expectation to the extent actually known and, otherwise, in 

his best interest. We agree with the trial court that summary judgment for the 

appellees is warranted on the ground that no reasonable factfinder could conclude 

on the undisputed facts that, in executing the trust amendment, Mr. Garner was 

acting in accordance with the Decedent’s reasonable expectation or in the 

Decedent’s best interest. We also conclude that a DGPOA clause seemingly 
4

foreclosing claims of breach of fiduciary duty against Mr. Garner is inoperative, as 

the parties agree that the duty at issue is not waivable. In light of those holdings, we

need not decide whether Mr. Garner also breached any duty of loyalty he owed to 

the beneficiaries as successor trustee. We therefore affirm the Superior Court’s 

order granting summary judgment for the appellees.

I. Background

A. Facts

1. The Estate-Planning Documents

The following facts appear, unless otherwise noted, to be undisputed. In 2001, 

the Decedent, a long-time employee of the United States Department of State living 

in Washington, D.C., executed several estate-planning documents, including a trust 

and a DGPOA.

The trust document names the Decedent as the trustor and first trustee of the 

trust. It designates the Decedent as its sole beneficiary during his lifetime and 

specifies that, after the Decedent’s death, the trustee shall distribute forty percent of 

the trust assets to the University of Texas at Austin (for the purchase of books,

manuscripts, and materials for the Nettie Lee Benson Latin American Library 

Collection); forty percent to Catholic Relief Services World Headquarters; ten 
5

percent to St. Stephen Martyr Roman Catholic Church; and ten percent to St. Mary’s 

Roman Catholic Church and School.

Among the powers of the trustor is the right to revoke or vacate the trust at 

any time during the trustor’s lifetime as well as the right to “change, alter, or amend 

[the trust] . . . and to change any or all of the beneficiaries of [the] Trust, or to wholly 

divest them of any rights to property comprising the Trust Estate, or to limit said 

beneficiaries in any of their interests or rights herein.” The trust provides that,

“[a]fter the death of Trustor, the Trustee shall hold, manage and distribute the 

remaining Trust Estate” to the beneficiaries.

The trust designates Mr. Garner as successor trustee; Mr. Garner would 

assume the role of trustee “[i]n the event [the Decedent] is unwilling or becomes 

unable, for any reason, to continue to serve as Trustee.” The Decedent made this 

designation despite the fact that he and Mr. Garner had had extremely limited, and 

almost no face-to-face, interaction over many years. At the time, Mr. Garner was 

approximately twenty-one years old and was attending college.

The DGPOA, meanwhile, was intended “to provide the fullest possible 

authority for [the] Attorney-in-Fact to act on [the Decedent’s] behalf and in [the 

Decedent’s] place and stead in the event that [the Decedent] become[s] temporarily 

or permanently incapacitated.” The Decedent appointed Mr. Garner as 
6

attorney-in-fact. The DGPOA authorizes Mr. Garner, as attorney-in-fact, “to 

substitute his judgment for [the Decedent’s] and to take any action on [the 

Decedent’s] behalf as fully and effectively as [the Decedent] could do if acting 

personally.”

The DGPOA contains four articles: Article I makes clear that the DGPOA is 

durable; Article II explains the DGPOA’s purpose; Article III sets forth the 

attorney-in-fact’s powers; and Article IV relates to the liability of third parties and 

the attorney-in-fact. Within Article III is a section specifically relating to the 

attorney-in-fact’s power to conduct “estate planning” and provides, in relevant part, 

that the attorney-in-fact has authority “to take any action with respect to any existing 

trust created by [the Decedent] or on [the Decedent’s] behalf, including the 

right . . . to exercise on [the Decedent’s] behalf the power to amend any trust . . . and 

to make any decision whatsoever without limitation with respect to any trust.” The 

DGPOA also exculpates the attorney-in-fact from liability for actions taken under 

that provision: “no action taken by [the Decedent’s] Attorney-in-Fact pursuant to 

this paragraph shall be considered self-dealing or a violation of his fiduciary duty.” 

Article IV of the DGPOA, among other things, broadly “release[s] and forever 

discharge[s]” the attorney-in-fact “from any and all liability upon any claim or 

demand of any nature whatsoever by [the Decedent] or [his] heirs and assigns arising 

out of the acts or omissions of [the Decedent’s] Attorney-in-Fact, except for willful 
7

misconduct or gross negligence.” It also provides that the attorney-in-fact “shall 

have no liability for entering into transactions authorized by this instrument” with 

the attorney-in-fact in the attorney-in-fact’s individual capacity as long as the 

attorney-in-fact “believes in good faith that such transactions are in [the Decedent’s] 

best interests or the best interests of [the Decedent’s] estate and those persons 

interested in [the Decedent’s] estate.”

2. The Decedent’s Incapacity and the Amendment to the Trust

From 2003 (the year of Mr. Garner’s college graduation, which the Decedent 

attended) through mid-2020, Mr. Garner did not interact with the Decedent, except 

for the occasional thank-you note or Christmas card. Around the summer of 2020, 

the Decedent fell and was admitted to George Washington University Hospital. The 

Decedent’s physical and mental health deteriorated precipitously thereafter. In 

August 2020, the hospital filed a Petition for a Temporary Guardian, requesting the 

appointment of a ninety-day healthcare guardian. See In re John Michael Garner, 

No. 2020-INT-000218. In conjunction with this proceeding, the hospital filed two 

certificates of incapacity from physicians who had personally examined the 

Decedent during his stay in the hospital. Both physicians certified that the Decedent 

suffered from mental incapacity brought on by “acute encephalopathy,” a 

deterioration of brain function.
8

After becoming aware of the DGPOA, the trial court denied the hospital’s 

petition for the appointment of a guardian because Mr. Garner was empowered, as 

attorney-in-fact, to make healthcare and financial decisions on behalf of the 

Decedent. In August 2020, after the Decedent had become incapacitated, 

Mr. Garner was contacted and learned for the first time of his roles under the estate 

documents. Mr. Garner found the fact that the Decedent had named him 

“surprising.”

On or around December 7, 2020, the Decedent suffered a stroke or series of 

strokes and was admitted to Howard University Hospital. Mr. Garner did not 

communicate with the Decedent after this point and it is undisputed that he never 

attempted to communicate with the Decedent about his estate plan.

On December 23, 2020, Mr. Garner, acting as attorney-in-fact for the 

Decedent due to the Decedent’s incapacity, executed the amendment to the trust. 

The amendment removed the existing contingent beneficiaries and substituted 

Mr. Garner in their place. The amendment therefore had the effect of distributing 

one hundred percent of the trust assets—which by that point amounted to 

approximately $3,000,000—to Mr. Garner upon the Decedent’s death. Mr. Garner 

knew that the Decedent’s death could be imminent and did not discuss the 

amendment with the Decedent. The Decedent died on January 5, 2021.
9

B. Procedural History

In April 2021, Mr. Garner filed a petition in the Probate Division of the

Superior Court seeking abbreviated probate and unsupervised administration of the

Decedent’s estate. That petition did not identify the charitable beneficiaries as 

interested persons, instead listing only Mr. Garner as the trust’s beneficiary. The 

Superior Court denied the petition “without prejudice to the filing of a petition for 

standard probate that is accompanied by a list of interested persons that includes all 

the trust beneficiaries under the trust . . . prior to its amendment on December 23, 

2020.”

In June 2021, Mr. Garner sought a declaratory judgment “as to the efficacy of 

the Amendment executed by [Mr. Garner] pursuant to the authority granted to him 

under the Power of the Attorney and the Trust,” naming the charitable beneficiaries 

as defendants. The parties filed cross-motions for summary judgment. On summary 

judgment, the trial court considered “(1) whether Mr. Garner breached his fiduciary 

duty as Successor Trustee when he executed the Amendment, (2) whether 

Mr. Garner breached his fiduciary duty as Attorney-in-Fact when he executed the 

Amendment, and (3) [whether] the exculpatory clause in the DGPOA is enforceable 

or against public policy.”
10

The trial court agreed with the beneficiaries on each question. First, it 

concluded that Mr. Garner as successor trustee owed a duty of loyalty to the 

beneficiaries, that “the Amendment created a conflict between Mr. Garner’s 

fiduciary duties [under the Trust] and his personal interests,” and that the amendment 

“harmed the beneficiaries because they had future interests in the Trust.” Second, 

the trial court concluded that Mr. Garner as attorney-in-fact under the DGPOA owed 

the Decedent a common-law fiduciary duty requiring him to act in good faith and 

that Mr. Garner breached this duty because the Decedent never “discuss[ed] his 

finances, estate plan, or the disposition of his assets upon his death with Mr. Garner”

and, “[c]onsidering the material benefit Mr. Garner would acquire if the Amendment 

were enforced, Mr. Garner could not rely solely on the language of the DGPOA to 

divest all previous beneficiaries without seeking informed consent from Decedent 

or providing proof of acting in good faith and disclosure of necessary facts to 

Decedent.” Finally, the trial court determined that Mr. Garner executed the 

Amendment “in bad faith and with reckless indifference to the purposes of the trust 

and interests of the beneficiaries” and that the exculpatory clause was therefore 

“unenforceable and against public policy.”

This appeal followed.
11

II. Analysis

Mr. Garner asserts that the trial court erred in granting summary judgment for

the beneficiaries because he acted within the scope of his express authority under 

the DGPOA in amending the trust to replace the designated contingent beneficiaries 

with himself. We disagree. Applying (without deciding the correctness of) the 

parties’ consensus view that, notwithstanding the terms of the DGPOA, Mr. Garner 

was subject to a non-waivable duty to act consistently with his uncle’s reasonable 

expectation or best interest, we hold that, on the undisputed facts, a reasonable 

factfinder could not conclude that Mr. Garner did so.

A. Standard of Review

“This court reviews a grant or denial of summary judgment de novo and 

applies the same standard as the trial court does in considering the motion for 

summary judgment.” Bowyer v. Reinhardt, 277 A.3d 1259, 1265 (D.C. 2022). “On 

appeal, this court is required to conduct an independent review of the record to 

determine whether any relevant factual issues exist by examining and taking into 

account the pleadings, depositions, and admissions along with any affidavits on file, 

construing such material in the light most favorable to the party opposing the 

motion.” Id. (alterations and internal quotations omitted). “Summary judgment is 

proper if, when the facts are viewed in the light most favorable to the non-moving 
12

party, there are no genuine issues of material fact and the moving party is entitled to 

judgment as a matter of law.” Id. (alterations and internal quotations omitted).

B. Discussion

The trial court granted summary judgment for the appellees and voided the 

amendment to the trust because, in its view in light of the undisputed facts, 

Mr. Garner violated both a fiduciary duty to the Decedent as attorney-in-fact under 

the DGPOA and a duty of loyalty to the beneficiaries as trustee of the trust. The trial 

court also concluded that the DGPOA’s exculpatory clause did not shield 

Mr. Garner’s conduct. We agree with the trial court that, on the undisputed facts,

Mr. Garner as attorney-in-fact violated a non-waivable duty to the Decedent, and we 

affirm on that basis without reaching any duty Mr. Garner owed to the beneficiaries 

under the trust.

In addressing whether Mr. Garner owed any fiduciary or loyalty duties, the 

parties in their initial briefs disputed the applicability and scope of various terms of 

the DGPOA. Mr. Garner argued that the DGPOA expressly authorized the 

amendment without limitation. In particular, he asserted that Article III of the 

DGPOA “expressly provided [him] with the unlimited authority ‘to take any action 

with respect to any existing trust,’ and the specific authority ‘to exercise on 

[Decedent’s] behalf the power to amend any trust . . . and to make any decision 
13

whatsoever without limitation with respect to any trust[.]’” The beneficiaries 

countered that the plain language of the DGPOA did not provide unlimited authority 

to Mr. Garner to act as he pleased; instead, the language of Article IV required

Mr. Garner to act in good faith and in the best interests of the Decedent. According 

to the beneficiaries, Article IV “does not authorize [Mr. Garner] to engage in 

self-dealing for his own sake, without respect to Decedent’s best interest or the 

interests of the Charitable Beneficiaries.” Mr. Garner responded that the language 

the beneficiaries pointed to is limited to “transactions” entered into by Mr. Garner 

and does not apply to amendments to the trust.

The terms of Article III of the DGPOA are unquestionably broad and it is 

unclear whether they are limited by good-faith and best-interest standards contained 

in Article IV. We need not decide that question, however, because the parties agreed 

at oral argument and in supplemental briefing that, irrespective of whether the 

express terms of the DGPOA give Mr. Garner unfettered authority to amend the 

trust, the common law imposes an external, non-waivable duty to act in good faith,

in accordance with the reasonable expectations of the principal to the extent known

or otherwise in the principal’s best interest, and within the scope of the authority 

granted by the principal. See D.C. Code § 21-2601.14(a) (“Notwithstanding 

provisions in the power of attorney, an agent that has accepted appointment shall: 

(1) Act in accordance with the principal’s reasonable expectation to the extent 
14

actually known by the agent and, otherwise, in the principal’s best interest; (2) Act 

in good faith; and (3) Act only within the scope of authority granted in the power of 

attorney.” (emphasis added)).2

The parties, moreover, agree not only that Mr. Garner must have acted in 

accordance with the Decedent’s reasonable expectation or otherwise in the 

Decedent’s best interest but also that this duty entails an objective inquiry regarding 

the reasonableness of Mr. Garner’s view that his actions were consistent with the 

Decedent’s wishes or interests. The parties also cross-moved for summary judgment 

in the trial court and maintain in this court that the facts are undisputed and that a 

remand for further factfinding is unwarranted.

 

2 On November 21, 2022, the D.C. Council passed the Uniform Power of 

Attorney Amendment Act of 2022 (UPAA), which came into effect on February 23, 

2023. D.C. Code § 21-2601.01 et seq. (2022), D.C. Law 24-236. “An act done 

before . . . [February 23, 2023] is not,” however, “affected by” the UPAA, D.C. 

Code § 21-2604.03(4), and the parties agree that the law does not apply to this case 

because Mr. Garner’s amendment to the trust was “[a]n act done before” February 

23, 2023. Id. The parties also, however, agree that the UPAA reflects and codifies 

pre-existing common law regarding powers of attorney, including any extracontractual restraints on an attorney-in-fact’s powers under a power of attorney. 

Accordingly, while the UPAA does not provide the controlling framework for the 

fiduciary-duty question here, we note that it is consistent with the parties’ shared 

understanding that good-faith, reasonable-expectation or best-interest, and scope 

standards limit the authority of an attorney-in-fact notwithstanding any unlimited 

language in the power-of-attorney document itself.
15

Accordingly, the question before us is whether, on the undisputed facts, a 

reasonable factfinder could conclude that Mr. Garner reasonably believed that he 

was acting in accordance with the Decedent’s expectation or in the Decedent’s best 

interest.3

 We agree with the beneficiaries that the answer is no.

The summary judgment record does not support a conclusion that Mr. Garner 

reasonably believed that the amendment was consistent with the Decedent’s 

expectation or best interest. Mr. Garner by his own admission had scant contact with 

 

3 The trial court found that summary judgment was appropriate because 

Mr. Garner was subject to a common-law duty of good faith and the undisputed facts 

established that Mr. Garner violated that duty. The UPAA defines “good faith” as 

“honesty in fact,” D.C. Code § 21-2601.02(4), raising the question whether it is 

amenable to resolution on summary judgment. See William J. Davis, Inc. v. Tuxedo 

LLC, 124 A.3d 612, 624-25 (D.C. 2015) (“[G]iven the often subjective nature of 

determining one’s mental state, summary judgment should be granted sparingly on 

that ground.” (alterations, footnotes, and internal quotations omitted)); 3511 13th St. 

Tenants’ Ass’n v. 3511 13th St., N.W. Residences, LLC, 922 A.2d 439, 444 (D.C. 

2007) (“In general, . . . summary judgment is not appropriate and should be granted 

sparingly in cases involving motive or intent as material elements.” (internal 

quotations omitted)) (citing cases). We need not address that issue, however, 

because we rely on the duty to act in accordance with the principal’s reasonable 

expectation or best interest. The parties have briefed that duty, and they agree that 

it applies, it entails an objective inquiry, and no further factfinding is necessary. See 

Jaiyeola v. District of Columbia, 40 A.3d 356, 372 (D.C. 2012) (this court “has 

discretion to uphold a summary judgment under a legal theory different from that

applied by the trial court, and rest affirmance on any ground that finds support in the 

record, provided it proceeds cautiously” (internal quotation omitted)).
16

the Decedent over almost two decades and never spoke with the Decedent about his 

finances or estate. He had no affirmative basis to believe that the Decedent had 

changed his mind about his selection of beneficiaries—a selection that had been in 

place for nineteen years and that the Decedent could have changed before his 

incapacity if he had wanted to. Simply put, Mr. Garner presented no evidence that 

he had any reason to believe that the Decedent would have wanted an amendment to 

the trust, let alone the amendment Mr. Garner made.

Mr. Garner posited theories for why the Decedent named the charitable 

beneficiaries without really meaning it, but those theories were, by his own word, 

mere “speculation.”4

 Mr. Garner asserted that the Decedent and the Decedent’s 

brother had an acrimonious relationship, but, even taking that assertion as true, it 

does not explain why the Decedent chose the beneficiaries he chose rather than 

naming other family members and simply disinheriting that brother. Mr. Garner also 

claimed that the Decedent had affection for his nieces and nephews and named the 

beneficiaries only because Mr. Garner and his cousins were too young, but that does 

 

4 After the Decedent died, Mr. Garner learned of potential reasons the 

Decedent would have named the beneficiaries: the Decedent used to visit the Nettie 

Lee Benson Latin American Library while in college; the Decedent was a Catholic; 

the Kennedys, whom the Decedent admired, attended St. Stephen Martyr Roman 

Catholic Church; and the Decedent went to school and church at St. Mary’s Roman 

Catholic Church and School. The evidence does not, however, indicate that 

Mr. Garner was aware of those facts when he made the amendment.
17

not explain why the Decedent did not amend the trust himself once his nieces and 

nephews were older (and we note that Mr. Garner was an adult at the time the 

Decedent created his estate documents; if the Decedent had wished to name 

Mr. Garner with the hope that he would later distribute the assets to all of the cousins, 

he could have designated Mr. Garner in 2001). Nor does it explain why Mr. Garner 

amended the trust to make himself the sole beneficiary rather than including his 

cousins.

We also find it relevant that, after he made himself the sole beneficiary of the 

Decedent’s trust, Mr. Garner tried to probate the Decedent’s will through an 

abbreviated process that would not have alerted the prior trust beneficiaries of the 

Decedent’s designation.

Although Mr. Garner alludes to his speculative beliefs about the Decedent’s 

reasons for naming the beneficiaries, he relies primarily on the broad authority set 

forth in the DGPOA and the apparent waiver of any self-dealing liability as evidence 

that the Decedent reasonably expected that Mr. Garner could amend the trust in 

essentially any manner. To be sure, the terms of the DGPOA are relevant to a 

determination of the Decedent’s expectations and his trust in Mr. Garner. See Sibley 

v. St. Albans Sch., 134 A.3d 789, 803 (D.C. 2016) (“To determine the testator’s 

intent, the court looks first to the language of the document[.]”). But if broadly 
18

permissive language in a DGPOA could by itself serve as evidence that the 

attorney-in-fact acted in accordance with the principal’s wishes, then the external, 

non-waivable duty—which all parties agree applies—would function as no 

constraint at all. Thus, proceeding on the parties’ shared understanding of the law,

even where a DGPOA appears to grant virtually unfettered authority, the 

attorney-in-fact must point to something else supporting their claim that a particular 

act was in accordance with the principal’s reasonable expectation or best interest. 

Mr. Garner has failed to do so here.

Finally, the trial court concluded that the DGPOA’s exculpatory clause could 

not shield Mr. Garner’s amendments to the trust because “Mr. Garner’s execution of 

the Amendment was in bad faith and with reckless indifference to the purposes of 

the trust and interests of the beneficiaries and, as a result, application of the 

exculpatory clause in this matter is unenforceable and against public policy.” There 

are two “exculpatory” clauses potentially at issue here. One is the more general 

provision in Article IV of the DGPOA that “release[s] and forever discharge[s]” the 

attorney-in-fact “from any and all liability upon any claim or demand of any nature 

whatsoever by [the Decedent] or [the Decedent’s] heirs and assigns arising out of 

the acts or omissions of [the Decedent’s] Attorney-in-Fact, except for willful 

misconduct or gross negligence.” Regardless of the enforceability of this 

exculpatory clause, it does not appear to apply here: Mr. Garner does not face 
19

liability from a claim or demand by any party; rather, he affirmatively sought a 

declaratory judgment as to the efficacy of his amendment. The second clause at 

issue is in a specific DGPOA paragraph relating to the trust, and it states that “no 

action taken by [the Decedent’s] Attorney-in-Fact pursuant to this paragraph shall 

be considered self-dealing or a violation of his fiduciary duty.” Whether or not this 

clause would be enforceable as a matter of public policy, the parties agree that an 

attorney-in-fact’s duty to act in accordance with the principal’s reasonable 

expectation to the extent actually known or in the principal’s best interest is not 

waivable. Accordingly, this clause could not have relieved Mr. Garner of his duty 

to act in accordance with the Decedent’s reasonable expectation or best interest.

III. Conclusion

For the foregoing reasons, we affirm the trial court’s order granting appellees’ 

motions for summary judgment.

So ordered.