MAY, J.
. . . .
We hold that where, as here, an account is established by an attorney-in-fact using entirely the funds of a principal, the attorney-in-fact is named joint owner or POD beneficiary, and the principal has no direct involvement in, or even awareness of, the creation of the account, the survivor cannot be presumed the owner of the accounts.
This is precisely the type of situation that, under the common law, would have raised a red flag of constructive fraud. “Constructive fraud arises by operation of law from a course of conduct, which, if sanctioned by law, would secure an unconscionable advantage, irrespective of the actual intent to defraud.” Strong v. Jackson, 777 N.E.2d 1141, 1146 (Ind. Ct. App. 2002), aff’d on reh’g, trans. denied 792 N.E.2d 44 (Ind. 2003). “The law presumes fraud when a person with a fiduciary duty benefits from a questioned transaction.” Clarkson v. Whitaker, 657 N.E.2d 139, 144 (Ind. Ct. App. 1995), reh’g denied, trans. denied. If there is a fiduciary relationship and the questioned transaction between the two parties results in an advantage to the dominant party in whom the subordinate party had reposed his or her trust and confidence, the dominant party in the relationship bears the burden to rebut, by clear and unequivocal proof, the presumption of fraud. In re Estate of Wade, 768 N.E.2d 957, 961-62 (Ind. Ct. App. 2002), trans. denied 783 N.E.2d 697 (Ind. 2002). The relationship between an attorney-in-fact and his or her principal is a fiduciary one. Strong, 777 N.E.2d at 1148.
Our Supreme Court noted in In re Estate of Banko, 622 N.E.2d 476, 480 (Ind. 1993), reh’g denied, that under the Non-Probate Transfer Act4 (“NPTA”), there is a statutory presumption in favor of the surviving joint account holder, regardless of the relationship between the decedent and the survivor. This statutory presumption requires that a party challenging the survivor’s right to the joint account proceeds establish that the decedent did not intend for the survivor to receive the funds. Id.
. . . .
Banko does not require application of NPTA statutory presumption in favor of Taylor as POD beneficiary or joint account holder under the facts of this case. The Banko Court explicitly stated the presumption is premised on the “underlying assumption . . . that most persons who use joint accounts want the survivor or survivors to have all balances remaining at death.” 622 N.E.2d at 480 (citing commentary by the Indiana Probate Code Study Commission) (emphasis supplied). The statutory presumption therefore cannot properly be applied where a testator is unaware the accounts are being opened and/or incompetent to form the requisite intent that they benefit the survivor. As it appears Rickert could not have had any “intent” regarding the ownership of the accounts, it was error to apply the presumption and require the Estate to rebut it. We do not believe the broad holding in Banko eliminated the common law of constructive fraud and undue influence in a case like the one before us, where could be no “intent” on which the statutory presumption must be based.
. . . .
No presumption Taylor was an “intended receiver” arose because Rickert was incompetent when the joint accounts were established or unaware they were being established. We accordingly reverse and remand so the trial court may do additional factfinding, if necessary, applying the common-law presumption against Taylor.
. . . .
The trial court erred in concluding Taylor was presumptively entitled to survivorship rights in the challenged accounts she created and in requiring the Estate to rebut that presumption by clear and convincing evidence. Taylor’s proffered testimony was properly excluded. We accordingly reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
BAKER, C.J., concurs.
BARNES, J., dissenting with separate opinion.
BARNES, Judge, dissenting.
I respectfully dissent. At the outset, however, I wish to emphasize that I am highly sympathetic to the result reached by the majority. If we were writing on a blank slate I would agree with that result. We are not writing on a blank slate. As an intermediate appellate court, we must follow precedent set by our supreme court, even if we do not agree with it. See Horn v. Hendrickson, 824 N.E.2d 690, 694-95 (Ind. Ct. App. 2005). That said, I simply am convinced that our supreme court’s Banko decision is binding precedent we must follow.
Banko unequivocally states, “The legislative enactment of the survivorship presumption by unmistakable implication replaces the common law presumption of undue influence. . . . We hold that [the NPTA] creates the presumption that a survivor to a joint account is the intended receiver of the proceeds in the account.” Banko, 622 N.E.2d at 480. Our supreme court did not state any exceptions to this rule. Banko clearly holds that the NPTA abolished the common law of constructive fraud and undue influence for any accounts falling under the statute. Moreover, Banko was decided sixteen years ago, and aside from recodifying the statute our legislature has not seen fit to alter any of the applicable language of the NPTA. “[I]t is well-established that a judicial interpretation of a statute, particularly by the Indiana Supreme Court, accompanied by substantial legislative inaction for a considerable time, may be understood to signify the General Assembly’s acquiescence and agreement with the judicial interpretation.” Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005).
To the extent the majority asserts that there was essentially undisputed evidence that Rickert was incompetent at the time most of the accounts at issue were opened, and that this means the statutory presumption of survivorship under the NPTA does not apply, I cannot agree. First, I believe that any evidence of Rickert’s incompetency would be relevant to rebutting the NPTA presumption of survivorship, and therefore the Estate bore the burden of establishing such incompetency; Taylor did not have to prove competency. I do not think the evidence regarding Rickert’s incompetency is as conclusive as the majority suggests. Rickert never was legally declared incompetent, and the Estate presented no expert testimony that he ever met that definition. There was testimony from Baker and two of Rickert’s nephews that they believed he began to “decline” mentally beginning in about 2000, and that eventually (although they could not say precisely when) they believed he was unable to make decisions for himself. Tr. p. 34. The trial court was not required to accept this imprecise lay testimony regarding Rickert’s competency. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004) (noting that factfinders may choose not to accept even uncontradicted testimony). Moreover, there was testimony from a bank employee, who had interacted with Rickert and Taylor sometime around 2002 or before, that she believed Rickert was coherent, not confused, and able to understand his financial dealings.
Second, and much more importantly, even if I were to assume that there was conclusive, undisputed evidence that Rickert was incompetent when some or most of these accounts were opened, there were similar facts in Banko, and still our supreme court applied the NPTA statutory presumption of survivorship. Banko rejected the appellant’s contention that it had rebutted the statutory presumption of survivorship rights; the opinion contains no recitation of the facts or evidence that led it to that rejection. I observe, however, that the opinion by this court in the matter indicated that there was virtually undisputed evidence that at the time of at least some of the disputed transactions, the person whose estate was challenging the transactions was near death and incapable of consenting or signing his name to those transactions. See In re Estate of Banko, 602 N.E.2d 1024, 1029-30 (Ind. Ct. App. 1992). Specifically, “$71,000 of Ratheon stock had been transferred only a few weeks before Banko’s death, at a time when Banko not only was incapable of understanding what he was doing but was unable to write his own name.” Id. at 1027. This evidence did not persuade our supreme court that the appellant had unmistakably rebutted the statutory presumption of survivorship. See Banko, 622 N.E.2d at 481. If our supreme court in Banko was not persuaded to reverse a trial court’s judgment that a joint account survivor was entitled to the account, even where there was clear evidence the decedent was incapacitated when some of the transactions occurred, I conclude we should not reverse the trial court’s judgment in this case, where the evidence is less clear regarding Rickert’s incapacity or when it might have occurred in relation to when the joint accounts were opened.
I am keenly aware that an unscrupulous caregiver, armed with a power of attorney, could finagle joint tenancy accounts in a way that results in a gross injustice. Under Banko’s interpretation of the NPTA, however, courts essentially must presume that a joint tenancy account was scrupulously created, no matter who created it and regardless of whether one person to the account was even aware of its creation. I would urge our supreme court to reconsider Banko’s breadth, or alternatively urge the General Assembly to enact legislation that would exempt situations such as the one in this case from the NPTA’s application. Unless and until that happens, however, we must apply the NPTA as Banko interpreted it. Under that interpretation, I believe we have no choice but to affirm the judgment of the trial.