Eager v. Burrows

2008 UT 42
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Kay W. Eagar, No. 20061011
Plaintiff and Appellant,
v.
Ray Burrows, Ronald Burrows,
Linda Davis, Arthur Kiisel,
Julia Rodgers, and Florence F I L E D
Webster,
Defendants and Appellees. July 11, 2008
---
Third District, Salt Lake
The Honorable Denise P. Lindberg
No. 060905534
Attorneys: Michael A. Jensen, Salt Lake City, for plaintiff
Wesley D. Hutchins, Salt Lake City, for defendants
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 Ray Burrows, acting under a durable power of attorney
for asset management, gifted the personal property of his
stepmother, Ida Burrows, to her children and stepchildren prior
to her death. Following Ida’s death, Kay Eagar, Ida’s daughter,
brought suit to compel the stepchildren to return the property to
her late mother’s estate for distribution according to the terms
of Ida’s will. The district court granted summary judgment in
favor of the stepchildren, holding that the power of attorney
granted broad authority to gift or otherwise distribute personal
property. On appeal, we must decide (1) whether the power of
attorney granted Ray the authority to gift Ida’s personal
property before she died and (2) whether in gifting the property,
Ray breached his fiduciary duty to Ida. We conclude that the
power of attorney granted Ray the authority to gift the personal
property and that he did not breach his fiduciary duty.

1 Utah Code Ann. § 75-1-201(5), (9), (25) (Supp. 2003).
No. 20061011 2
BACKGROUND
¶2 The parties do not dispute the material facts. Ida and
Ralph Burrows were married for more than forty-three years and
together raised eight children, although they had none together.
Each brought children from prior marriages into the family. Ida
brought her two children, Kay Eagar and William Whiteley. Ralph
brought his two children, Ray and Ron Burrows, as well as four
stepchildren from a previous marriage, Linda Davis, Arthur
Kiisel, Julia Rodgers, and Florence Webster (these six
individuals will be referred to collectively as “the
stepchildren”). Although neither Ida nor Ralph adopted the
other’s children or stepchildren, they considered all eight
children their sons and daughters.
¶3 On October 2, 1997, Ida and Ralph executed a series of
personal estate documents. These included Ida’s will; Ralph’s
will; Ida and Ralph’s joint trust (the “Burrows Trust”); Ida’s
limited power of attorney in Kay for medical decisions; and Ida’s
durable power of attorney in Ray for asset management, which also
included a medical power of attorney. Taken together, these
documents formed Ralph and Ida’s integrated estate plan. But
only Ida’s durable power of attorney and will are at issue in
this case.
¶4 The parties dispute to whom Ida’s personal property
should pass according to the two documents. In her will, Ida
directed that all “tangible personal property” in her estate be
given as set forth in a written memorandum that she should leave.
Ida left no memorandum. She further directed in her will that
“[t]he remainder of my tangible personal property, or all of such
property in the event that I leave no memorandum, I give and
bequeath to my personal representatives, to be divided among my
issue by my personal representatives, in their sole and absolute
discretion.” “Issue” is defined in Utah Code section 75-1-201 as
a descendant child who could take under intestate succession but
“excludes any person who is only a stepchild.”1 Thus, Ida’s
“issue,” as defined by this section, are Kay and William.
Finally, Ida directed in her will that any remaining assets of
the estate be “poured over” into the Burrows Trust, which names
all eight children as “beneficiaries” in equal shares.
¶5 The second document affecting Ida’s personal property
is her durable power of attorney for asset management, which
names Ray as her attorney-in-fact. The power of attorney grants

3 No. 20061011
Ray broad authority to act on Ida’s behalf and gives him control
over Ida’s property, both real and personal,
to bargain and agree for, buy, sell,
mortgage, hypothecate, and in any and every
way and manner deal in and with goods, wares,
and merchandise, [choses] in action, and
other property in possession or in action,
and to make, do, and transact all and every
kind of business of what nature or kind
soever, including all business related to
accounts in financial institutions.
The power of attorney further authorizes Ray “to gift property,
whether real or personal, or sums of money or any other items”
belonging to Ida.
¶6 Ralph passed away on September 23, 2002. Around the
time of his death, Ida was hospitalized and shortly thereafter
was moved to a long-term care facility. During this period, the
children faced numerous decisions relating to Ida’s care and the
management of her assets and personal property. The family,
having determined that Ida could no longer sustain herself at
home and would need to stay permanently in a long-term care
facility, needed to decide what to do with the home and her
personal property. According to the stepchildren, when
discussing Ida’s personal property, they considered the following
factors: “the pros and cons of spending money to place the
personal property into storage,” “the pros and cons of leaving
the personal property in the home untouched and open to possible
theft, damage, or loss,” and “the pros and cons of paying
utilities and upkeep for an unoccupied home, depleting assets of
the estate, when it was clear that Ida’s health would not permit
her to remain in the home alone.”
¶7 Acting under the power of attorney granted to him by
Ida, Ray decided to conduct a drawing for the personal property.
Each of the eight children, including Kay, drew numbers and then,
in turn, selected items from Ida’s personal property that they
wanted. Most of the items selected were personal effects of
modest, mainly sentimental value. According to the stepchildren,
Ray gifted the items “with the understanding that wherever Ida
eventually resided, that if she wanted items returned to her,
they would be returned for her use until her passing.” At Ida’s

2 Kay contended below that this understanding raises
questions as to the status of the personal property at Ida’s
death. She claimed that it was not gifted but merely loaned and,
therefore, was still part of Ida’s estate. The district court
ruled that “the personal property distributed by [Ray]
constituted gifts that vested at the time of the distribution,
and the informal undocumented agreement that items gifted to
others might still be made available for Ida Burrow’s use during
her lifetime was an accommodation to a mother they all cared
for.” Kay did not appeal the ruling that the gifts vested at the
distribution. Instead, she appeals the ruling that the power of
attorney granted Ray authority to make the gifts. Because Ida
did not appeal the ruling as to the vesting of the gifts of
personal property, the issue is not material to our judgment.
No. 20061011 4
death, these items would be returned to the children who selected
them.2
¶8 At the time of the drawing, Kay claims that she did not
agree with the decision and objected to distributing Ida’s
property. Kay, who did not consider the items to be legitimate
gifts, paid $600 in consideration for the items she selected for
herself and her brother William. She requested that the
stepchildren follow suit, but none of them did.
¶9 Having gifted these personal property items, Ray sold
Ida’s more significant assets, including her house, car, truck,
and lawn mower. He then deposited the proceeds into the Burrows
Trust for Ida’s care and well-being.
¶10 Ida remained in the long-term care facility until her
death on September 19, 2005. Kay became the court-appointed
personal representative for Ida’s estate. Because she believed
that, based on Ida’s will, the personal property should go to
Ida’s issue--Kay and her brother William--Kay immediately
requested that all of the items distributed by Ray be returned to
the estate. The stepchildren declined to comply with her
request, at which point Kay, acting as personal representative of
the estate, sued to compel them to return the items.
¶11 Kay filed a motion for partial summary judgment to
determine whether Ida’s estate included the personal property
items. She argued that, as personal representative, she alone
had legal authority to control the disposition of Ida’s personal
property. In response, the stepchildren counterclaimed,
contending that the lawsuit was frivolous and asserting other
causes of action related to Kay’s handling of trust funds
received by Ida’s estate that were to be poured over into the

3 Utah R. Civ. P. 56(c).
4 Wayment v. Clear Channel Broad., Inc., 2005 UT 25, ¶ 15,
116 P.3d 271.
5 No. 20061011
Burrows Trust. The stepchildren also filed a cross-motion for
summary judgment, arguing that Ray was acting under the durable
power of attorney for asset management executed by Ida. Kay
responded that the power of attorney contains only a “minor
reference” to gifting and that the terms of Ida’s will--giving
all remaining personal property to her “issue”--should limit any
distribution of her personal property even before her death. She
asserted that Ray breached his duty of loyalty to Ida by gifting
her personal property in a manner that did not benefit Ida or
conform to the unambiguous intent expressed in her will.
Further, she argued, Ray breached his fiduciary duty by engaging
in self-dealing because he personally benefitted from the gifts.
¶12 In its Order and Judgment, the district court granted
summary judgment in favor of the stepchildren, holding that the
durable power of attorney granted Ray authority “to dispose of
Ida Burrows’s personal property essentially in any manner he
deemed appropriate within the limitations imposed by any
fiduciary duties that might be applicable.” The court denied
Kay’s motion for partial summary judgment and instead granted the
stepchildren’s cross-motion for summary judgment. On the
question of fiduciary duty, the court reasoned that there was no
breach because “[t]he manner in which [Ray] disposed of the
personal property was not inherently inequitable, or self-
serving, but rather sought to deal with all the children equally,
as Ralph and Ida Burrows clearly intended pursuant to and
consistent with their overall estate plan.” The stepchildren
voluntarily dismissed their counterclaims without prejudice to
expedite the conclusion of the litigation. Kay appealed the
grant of summary judgment against her. We have jurisdiction
pursuant to Utah Code section 78A-3-102(3)(j) (2008).
STANDARD OF REVIEW
¶13 Summary judgment is appropriate only when there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.3 When reviewing a grant of
summary judgment, we accord no deference to the district court’s
conclusions of law but review them for correctness.4

5 Orvis v. Johnson, 2008 UT 2, ¶ 10, 177 P.3d 600.
6 Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 31, 54
P.3d 1054 (citations omitted); accord Utah R. Civ. P. 56(e).
7 Themy v. Seagull Enters., 595 P.2d 526, 529 (Utah 1979).
No. 20061011 6
ANALYSIS
¶14 We will first review the burden and obligations of each
party on summary judgment. Then we will discuss whether the
durable power of attorney executed by Ida granted Ray authority
to gift Ida’s personal property. Finally, we will discuss
whether Ray breached his fiduciary duty. We conclude that the
durable power of attorney granted Ray the authority to gift Ida’s
personal property and that he did not breach his fiduciary duty.
I. BURDEN OF PROOF ON MOTION FOR SUMMARY JUDGMENT
¶15 In this case, Kay had the burden of establishing each
element of her claim that Ray lacked the authority to gift and
her claim that Ray breached his fiduciary duty.5 In moving for
summary judgment on these claims, the stepchildren had
the burden of presenting evidence to
demonstrate that no genuine issue of material
facts exists and that judgment as a matter of
law is proper. However, once the moving
party challenges an element of the nonmoving
party’s case on the basis that no genuine
issue of material fact exists, the burden
then shifts to the nonmoving party to present
evidence that is sufficient to establish a
genuine issue of material fact.6
We will affirm the grant of summary judgment in favor of the
stepchildren if it appears that “even according to the facts as
contended by the losing party, the moving party is entitled to
judgment as a matter of law.”7
II. AUTHORITY TO GIFT UNDER THE POWER OF ATTORNEY
¶16 The district court concluded that the durable power of
attorney expressly granted Ray authority to gift Ida’s personal
property. We agree. In determining whether Ray held such
authority, however, we must address both the language of the
power of attorney and Kay’s assertion that the terms of Ida’s
will limited Ray’s authority under the power of attorney. We

8 776 P.2d 57, 61 (Utah Ct. App. 1989).
7 No. 20061011
conclude that the power of attorney clearly gave Ray authority to
gift Ida’s personal property and that the will is irrelevant to
that grant of authority. Because there is no genuine issue of
material fact as to Ray’s authority under the power of attorney,
the district court properly granted summary judgment in favor of
the stepchildren.
A. The Language of the Power of Attorney Explicitly Authorizes
Ray to Gift Ida’s Personal Property
¶17 The durable power of attorney expressly granted Ray
authority to gift Ida’s personal property. The two-page
instrument gives Ray broad authority over Ida’s assets and
personal property. It authorizes Ray “in any and every way and
manner [to] deal in and with goods, wares, and merchandise,
[choses] in action, and other property in possession or in
action, and to make, do, and transact all and every kind of
business of what nature or kind soever.”
¶18 More specifically, the power of attorney expressly
authorizes Ray “to gift property, whether real or personal.” Kay
contends that the power to gift property is a single “minor
reference” and should not be given full effect. She offers no
argument as to what makes this explicit grant of authority
“minor” or why the power to gift need be referenced more than
once to be effective.
¶19 In her brief, Kay cites to two Utah cases for the
proposition that courts should strictly construe power of
attorney instruments. But these cases only confirm our
conclusion that Ray was authorized by the power of attorney to
gift Ida’s property. First, in Kline v. Utah Department of
Health, the court of appeals described power of attorney
instruments as follows: “The scope of the authority so conferred
may, by the terms of the instrument itself, be general or
limited, but the instrument creating this agency relationship is
to be strictly construed.”8 Even under the narrowest reading,
the power “to gift property, whether real or personal” is
explicit and clear; it granted Ray the authority to gift Ida’s
personal property.
¶20 Second, in Huntsman v. Huntsman, we held that the power
of attorney at issue “did not authorize a gift . . . for a mere

9 192 P. 368, 374 (Utah 1920).
10 Id. at 370.
11 Id. The general terms of the power of attorney in
Huntsman named the agent as “my true and lawful attorney, for
myself and in my name, place, and stead, and for my use and
benefit.” Id. The court held that this language was not
specific and did not “confer[] power to give the property away,
or convey it for a mere nominal consideration.” Id.
12 Id.
13 Utah Code Ann. § 75-5-503 (Supp. 2007).
No. 20061011 8
nominal consideration.”9 We concluded that whether an attorney-
in-fact has power to convey the principal’s property for nominal
consideration must be “deducible from the language or manifest
intent of the instrument.”10 But the power of attorney in
Huntsman granted no specific authority to gift the principal’s
real or personal property.11 The power of attorney executed by
Ida is clearly distinguishable because, unlike the instrument in
Huntsman, the authority to gift her personal property is plainly
“deducible from the language or manifest intent of the
instrument.”12
¶21 Kay also points to Utah Code section 75-5-503, which
became effective after the events at issue in this case, to argue
that public policy requires that the instrument “expressly
authorize[]” power to “make or revoke a gift of the principal’s
property.”13 But, as we have concluded, the power of attorney in
Ray did “expressly authorize” him to gift Ida’s personal
property. Even if section 75-5-503 were controlling in this
case, the outcome would be the same. Thus, the power of attorney
granted Ray the authority to gift Ida’s personal property.
B. Ida’s Will Is Irrelevant to the Grant of Authority in the
Power of Attorney
¶22 Ida’s will does not limit the authority granted by the
power of attorney because it does not control the disposition of
her assets during her lifetime. While they were signed on the
same day, the power of attorney and will are two separate
instruments that control the disposition of Ida’s personal
property during separate and distinct periods of time. The power
of attorney controlled while Ida was alive; the will controlled
upon her death. “A ‘will’ is the legal declaration of a person’s
intentions, which he or she wills to be performed after his or
her death. It is an instrument by which a testator makes a

14 95 C.J.S. Wills § 1 (2001) (citations omitted) (emphasis
added).
15 3 Am. Jur. 2d Agency § 21 (2007).
9 No. 20061011
disposition of real and personal property, to take effect after
his or her death.”14
¶23 Ida was still alive when Ray gifted her personal
property. Because the power of attorney controlled disposition
of Ida’s personal property while she was alive, his authority to
do so was derived from that instrument and not limited by the
will. The power of attorney, which granted Ray authority to gift
Ida’s property, did not reference the will. It did not purport
to limit the authority to gift by referencing the will.
Therefore, the identification for disposition of the same
property in the will does not limit the grant of authority in the
power of attorney; it is irrelevant in this case. The district
court correctly concluded that there was no genuine issue of
material fact as to Ray’s authority to gift Ida’s personal
property.
III. FIDUCIARY DUTY
¶24 Having determined that the power of attorney granted
Ray authority to gift Ida’s personal property, we now address
whether Ray breached his fiduciary duty. The district court
granted summary judgment on this issue to the stepchildren,
concluding that Ray did not breach his fiduciary duty, and we
agree. We will first discuss Kay’s argument that, even if Ray
had authority to make gifts, he breached his fiduciary duty of
loyalty because the gifts he made did not benefit Ida. Second,
we will discuss Kay’s argument that Ray breached his fiduciary
duty by self-dealing because he benefitted as a recipient of some
of the gifts. We agree with the district court that summary
judgment in favor of the stepchildren was proper in this case
because there was no genuine issue of material fact as to breach
of fiduciary duty.
A. Ray Met His Burden on Summary Judgment by Showing That There
Was No Genuine Issue of Material Fact on the Issue of Whether He
Breached His Fiduciary Duty of Loyalty
¶25 A power of attorney creates a principal-agent
relationship.15 Generally, “[a]n agent has a fiduciary duty to
act loyally for the principal’s benefit in all matters connected

16 Restatement (Third) of Agency § 8.01 (2006).
17 Id. § 8.01 cmt. b.
18 Nat’l Parks & Conservation Ass’n v. Bd. of State Lands,
869 P.2d 909, 918 (Utah 1993).
No. 20061011 10
with the agency relationship.”16 The Restatement (Third) of
Agency explains that “[a]lthough an agent’s interests are often
concurrent with those of the principal, the general fiduciary
principle requires that the agent subordinate the agent’s
interests to those of the principal and place the principal’s
interests first as to matters connected with the agency
relationship.”17 In the context of trusts, we have held that
“[t]he duty of loyalty requires a trustee to act only for the
benefit of the beneficiaries and to exercise prudence and skill
in administering the trust.”18
¶26 In moving for summary judgment, the stepchildren
demonstrated that Ray’s conduct did not violate his duty of
loyalty to Ida because the gifts benefitted Ida. In addition to
the emotional gratification inherent in giving to loved ones, Ida
benefitted in a strictly financial sense because the gifts
reduced the costs related to storage and upkeep of her personal
property. Ray consulted with the other children concerning Ida’s
personal property, and they discussed various alternatives,
including paying for storage, keeping the items in her home, and
paying for utilities and upkeep for a home to which she would
never return. As a result of these discussions and based on his
reasonable belief that Ida wanted all eight children to receive
her personal property, Ray conducted a drawing to distribute the
items among the eight children. Clearing the home to be sold and
avoiding the risk of loss and the costs of storage and upkeep
benefitted Ida and her estate financially. The proceeds from the
home sale were then deposited in the Burrows Trust for her
maintenance and care, which also benefitted her.
¶27 Ray and the other stepchildren agreed that these items
would be made available if Ida desired to have them with her in
the long-term care facility. The district court characterized
his actions as “fair and equitable” and consistent with the
overall estate plan. Ida benefitted from a fair and equitable
distribution of her personal property among her children and
stepchildren.
¶28 This evidence presented by the stepchildren
sufficiently demonstrated that there was no genuine issue of
material fact and that the stepchildren were entitled to summary

19 Utah Code Ann. § 75-1-201(5), (9), (25) (Supp. 2007).
11 No. 20061011
judgment on this issue. The burden then shifted to Kay to raise
a genuine issue of material fact showing why summary judgment was
not appropriate. Kay, in opposing summary judgment, did not
offer an alternative treatment of the property that might have
benefitted Ida more.
¶29 Instead, Kay attempted to raise a genuine issue of
material fact by asserting that Ray breached his duty of loyalty
by (1) gifting the property to the stepchildren because Ida
unambiguously expressed a contrary intent for the disposition of
her personal property in her will and (2) self-dealing because
Ray benefitted from the gifts by participating in the
distribution. We conclude that Kay’s assertions failed to raise
an issue of material fact and that Ray did not, as a matter of
law, breach his fiduciary duty. We will address both of Kay’s
assertions in the order listed.
B. Kay Presented Insufficient Evidence to Raise a Genuine Issue
of Material Fact That Ray Acted Contrary to Ida’s Intent
¶30 The only evidence Kay offered to show that Ray acted
contrary to Ida’s intent is Ida’s will. Ida’s will provided that
any personal property in her estate would, in the absence of a
memorandum directing otherwise, be distributed at the sole
discretion of her personal representative to her “issue,” meaning
Kay and William as defined by Utah Code section 75-1-201.19 Kay
essentially argued that Ray’s actions under the power of attorney
violated his fiduciary duty because the property was distributed
evenly among the children and stepchildren--a different
disposition of property than under the will. But we have already
concluded that the will in this case controlled the disposition
of Ida’s personal property only after her death and thus does not
inform our analysis of Ray’s actions while she was still alive.
Moreover, the power of attorney under which the personal property
was distributed was part of an integrated estate plan, which
provided for gifts of property both before and after Ida’s death.
Kay offered no plausible theory as to why the will should control
over the power of attorney, particularly when the property was
gifted while Ida was still alive. Kay, unable to offer any
evidence that the gifts were contrary to Ida’s intent, did not
raise a genuine issue of material fact with this assertion.

20 Black’s Law Dictionary 1390 (8th ed. 2004).
21 Wheeler v. Mann, 763 P.2d 758, 760 (Utah 1988) (quoting
IIA Scott, Trusts § 170, at 311 (4th ed. 1987)).
22 E.g., id.; see also In re Estate of Harrison, 745 A.2d
676, 680 (Pa. Super. Ct. 2000); Steele Estate, 103 A.2d 409 (Pa.
1954).
23 Harrison, 745 A.2d at 680.
24 Id.
No. 20061011 12
C. Kay Failed to Allege That Ray Did Anything That Amounts to
Self-Dealing
¶31 Kay next asserted that Ray breached his fiduciary duty
by self-dealing because Ray benefitted from the gifts he received
as part of the distribution. We agree with the district court
that, even assuming the facts alleged by Kay, Ray did not engage
in self-dealing.
¶32 Black’s Law Dictionary defines self-dealing as
“[p]articipation in a transaction that benefits oneself instead
of another who is owed a fiduciary duty.”20 In the trustee
context, we have said that a trustee engages in self-dealing if
he “‘place[s] himself in a position where it would be for his own
benefit to violate his duty to the beneficiaries.’”21 Kay’s
allegation of self-dealing in this context is unusual in that Ray
was not merely given authority and charged with the ongoing
management of Ida’s assets but was given explicit authority to
gift Ida’s property prior to her death. Cases of self-dealing
typically involve corporate fiduciaries or trustees of income-
producing trusts in which the fiduciaries are charged with
preserving and investing the property that they manage.22 In
those contexts, transactions that place the fiduciary in a
position inconsistent with the corporation or trust because of
the fiduciary’s competing self-interest are prohibited as self-
dealing.23 Such transactions are prohibited without regard to
the adequacy of consideration, the honesty of intent, or the lack
of fraud.24 But this traditional analysis of self-dealing
assumes that the object of the transaction and fiduciary
relationship at issue is to preserve the monetary value of the
estate. The analysis is inapplicable when the object of the
transactions at issue and indeed one of the purposes of the
fiduciary relationship is to dispose of property in anticipation
of the principal’s death.

25 103 A.2d 409, 413 (Pa. 1954); accord In re Krause Estate,
172 N.W.2d 468, 471 (Mich. Ct. App. 1969) (“[T]he rule of
undivided loyalty may be relaxed by appropriate language in the
trust instrument.”); see also 90 C.J.S. Trusts, § 248(e).
26 Steele Estate, 103 A.2d at 413 (alteration in original)
(quoting Flagg Estate, 73 A.2d 411, 414-15 (Pa. 1950)).
13 No. 20061011
¶33 This is not to say that, in cases of testamentary
distribution, fiduciary duties of loyalty do not apply to prevent
fiduciaries from improperly benefitting from prohibited
transactions. But we agree with the Pennsylvania Supreme Court
in Steele Estate, which held that “the doctrine of self-dealing
does not apply where the testator knowingly placed his trustee or
trust beneficiary in a position which he knew might conflict with
the interest of the trust or beneficiaries thereof, and gave her
the power to act in that dual capacity.”25 The Steele Estate
court reasoned that “‘the challenged action is within the
provisions of the will . . . . The conferred right to exercise
all these plenary powers of ownership necessarily modified or
displaced the otherwise absolute limitation against self-
dealing.’”26
¶34 Such is the case here. The power of attorney gave Ray
plenary authority, including, as noted above, the power to gift
Ida’s property. In deciding to gift the property, Ray did not
“place himself in a position where it would be for his own
benefit to violate his duty” to Ida. Rather, in gifting the
property, he acted in a manner consistent with the power of
attorney Ida had given him. The mere fact that Ray received some
benefit does not amount to self-dealing, particularly when Ray
could be expected to benefit as one of Ida and Ralph’s eight
children. While it is true that a gift for which no
consideration is paid rarely benefits the giver in a strictly
financial sense, Ray’s actions gifting the personal property
clearly benefitted Ida both financially and in other ways as
well. It benefitted her financially by clearing the house to be
sold and avoiding the costs of storage, upkeep, and risk of loss.
And the gift was a benefit to her because of the emotional value
inherent in a parent’s gift to her children. We agree with the
district court that even according to the facts as contended by
Kay, there is no genuine issue of material fact and the
stepchildren are entitled to judgment as a matter of law.

No. 20061011 14
CONCLUSION
¶35 The power of attorney expressly granted Ray authority
to gift Ida’s personal property prior to her death. In gifting
her property, Ray did not breach his fiduciary duty of loyalty to
Ida. Because there is no genuine issue of material fact, the
district court properly granted summary judgment to the
stepchildren. Affirmed.
---
¶36 Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.