J-A18022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: THE MATTER OF THE ESTATE          :   IN THE SUPERIOR COURT OF
 OF ERIC S. WAITE                         :        PENNSYLVANIA
                                          :
                                          :
 APPEAL OF: LISA D. WAITE                 :
                                          :
                                          :
                                          :
                                          :   No. 157 WDA 2019

             Appeal from the Order Entered January 11, 2019
    In the Court of Common Pleas of Jefferson County Orphans' Court at
                          No(s): O.C. 68-2018


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

CONCURRING STATEMENT BY BOWES, J.:               FILED FEBRUARY 24, 2020

      I concur in the result reached by the learned Majority.         Given our

standard of review, there was record support for the trial court’s finding that

Appellant’s personal interests may have affected her ability to act impartially

in Mr. Waite’s best interest and preserve his estate plan, especially with regard

to the credit union accounts. Hence, I cannot conclude that surcharge was

improper.

      I write separately to discuss the trial court’s finding that Appellant

impermissibly commingled her funds with those of the principal. The Majority

dismisses any notion that Appellant specifically violated a duty to prohibit the

commingling of funds because her duties with regard to the credit union

accounts were ministerial only.      See Majority Memorandum, at 21 n.5.

However, the trial court also found that, although Appellant did not deposit
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her money in Mr. Waite’s account, nor remove his money for her own use, her

acquiescence in the principal’s designation of her as the beneficiary on the

credit union accounts constituted commingling. It reasoned that her status

as beneficiary “meant, in effect, that his money was her money.” Trial Court

Opinion, 1/11/19, at 7. The Majority did not evaluate whether the trial court’s

legal conclusion was correct.

      I find no legal support for the trial court’s proposition. The fact that an

agent under a power of attorney (“POA”) is also a designated beneficiary on a

bank account does not ipso facto constitute commingling of funds.            The

accounts at issue are governed by the Multiple-Party Accounts Act (“MPAA”),

20 Pa.C.S. § 6301 et seq. A multiple party account is defined as “either a

joint account or a trust account.” Id. at § 6301. By all indications, the credit

union accounts were “in trust for” accounts in the name of Mr. Waite, with

Appellant as the designated beneficiary.        The MPAA provides that “[a]

beneficiary of a trust account is a party only after the account becomes

payable to him by reason of his surviving the original trustee.” Id. Thus, as

a designated beneficiary, Appellant had no present interest in Mr. Waite’s

accounts. He owned the accounts and could have changed the beneficiary

designation at any time during his lifetime. Since Appellant had no interest in

the funds until Mr. Waite’s death, the trial court’s conclusion that the

beneficiary designation alone constituted commingling in violation of

Appellant’s fiduciary duties under the POA was, in my view, legally incorrect.


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