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Kansas Lawyer Attempts to Deceive Medicaid, Is Censured

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MAY 11, 1998 VOLUME 5, NUMBER 45

Lawyer Frederick Apt had a long-standing relationship with Robert and Hazel Irwin. He first prepared wills for the couple in 1981. In 1993, he updated their wills, and did so again later that same year. It was not surprising, then, that the family returned for his advice when Mr. Irwin was placed in a nursing home.

In January, 1995, both Irwins were in poor health. Mrs. Irwin was still living at home, but facing the likely prospect of nursing home placement. Robert Irwin, Jr., the couple’s son, contacted Mr. Apt to find out what he might do to get some assistance with the cost of long-term nursing home care.

The Irwins owned their home as joint tenants with right of survivorship. Of course under Medicaid rules the Irwins could keep the home and still qualify (once their other assets were reduced to the appropriate levels), but Robert Irwin, Jr., also wondered what effect the death of either of his parents might have on the ownership of the home.

Mr. Apt, the lawyer, apparently anticipated the problems which might arise if Mrs. Irwin were to die. Then, although the home would still be an exempt asset and Mr. Irwin could qualify for Medicaid assistance, the state Medicaid agency could impose a lien on the home. While Mr. Irwin’s direct ownership in the home would not be affected, their son would no longer inherit the home free and clear on Mr. Irwin’s death. Mr. Apt saw a way to forestall the problem.

On January 16, 1995, Mr. Apt prepared a blank deed to the home for the Irwins’ son to sign. Robert Irwin, Jr., signed the deed (using his power of attorney, prepared by Mr. Apt a year before) and it was notarized as if the property was being sold, even though no buyer had yet been located. Mrs. Irwin died two days later. Robert Irwin, Jr., then spoke with a real estate company, and the home was listed for sale a week later.

One month after the death of Mrs. Irwin, a prospective buyer made an offer on the property. Mr. Apt then typed the buyer’s name in on the deed showing Mrs. Irwin as one of the sellers, but before the transaction could be completed the buyer backed out.

It wasn’t until four months later that new buyers came forward. When Terry and Cheryl Sparks finally purchased the home, Mr. Apt simply prepared a new first page to the deed which had been signed in January, and submitted it as if Mrs. Irwin (now four months deceased) were one of the sellers.

The significance of Mr. Apt’s deception was simple. If the home had been sold by Mr. and Mrs. Irwin prior to her death, one half of the proceeds would go to her estate and thereafter to her children (her will having disinherited her husband, who was already ill at the time it was written). If, on the other hand, the sale was completed after her death, the entire proceeds would belong to Mr. Irwin, and would have to be spent on his nursing home care; the children would receive nothing.

After the sale was completed, Kansas’ Medicaid agency requested further information on the timing of the transaction. Mr. Apt replied, falsely explaining that the sale had been arranged prior to Mrs. Irwin’s death and that the parties were just waiting for financing arrangements at the time she died. The state Medicaid agency did not believe his explanation, and pointed out the inconsistencies in his correspondence with the agency. Then the agency filed both felony criminal charges and an ethical complaint with the Kansas State Bar.

Mr. Apt retired from the practice of law while the disciplinary action was pending. Still, the Kansas Supreme Court publicly censured him, noting that he had also plead guilty to a reduced misdemeanor charge. He was also ordered to pay the costs of the disciplinary proceedings. In re Apt, Oct. 31, 1997.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.