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Medicaid Planning Technique Didn’t Work Exactly as Intended

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Medicaid planning technique

When a family member faces the high cost of long-term care, it may seem important to do whatever it takes to preserve their resources. Sometimes, though, a given Medicaid planning technique may cause problems. That can be true even if the approach is legal — and sometimes even if it is effective.

Take Missouri resident D. Lynn Duvall, for example. When his aunt Mildred became ill in 2002, he consulted a local elder law attorney about how to protect her assets from nursing home expenses. He and his wife Connie consulted with Columbia, Missouri, elder law attorney Joseph Yungwirth. The advice they got was a little edgy. The full effect of that advice has just come to its apparent conclusion, almost twenty years later.

Attorney Yungwirth proposes a plan

How did the Duvalls find Mr. Yungwirth? It’s not clear from the court record, but perhaps they learned about him because he gave regular public seminars on estate planning at the public library in Columbia, Missouri. He seemed to have a thriving practice, partly devoted to Medicaid planning.

Mr. Yungwirth’s suggestion was very clever — perhaps too clever, in fact. He calculated that aunt Mildred’s assets were worth almost exactly the value of Lynn and Connie’s home. His suggestion: “sell” a 98% interest in their home to aunt Mildred, and put the house in her trust so that they could get it back automatically on her death.

Mildred immediately qualified for Medicaid benefits, as planned. In early 2003, it looked like Mr. Yungwirth’s clever Medicaid plan had worked perfectly. But then the state received a “hotline” report that Lynn and Connie were financially exploiting Mildred, and the plan began to come apart.

The state filed a guardianship petition, asking that the Randolph County Public Administrator (what we in Arizona would call the Public Fiduciary) be appointed to manage Mildred’s estate. It took a year, but the Missouri probate court ultimately appointed the Public Administrator as Mildred’s guardian and conservator.

The probate judge’s observation and the aftermath

In fact, the probate judge based his guardianship decision partly on Yungwirth’s Medicaid planning technique. At the hearing, the judge said:

“An attorney-client relationship was established on the same day that this client deeded away her entire life’s savings and assets, and this was done with the person that stood to gain the most being in the same room while this is happening, without any independent legal advice…. The Court feels like, if not Medicaid fraud, not any of that, not bad estate planning, at least it’s an extreme gross negligence….”

In fact, the Judge wondered out loud why no one had reported Mr. Yungwirth to the Missouri State Bar Association for possible discipline. Apparently he — or someone — did exactly that: Mr. Yungwirth quit his practice and was suspended from the practice of law, though not for another five years.

In the meantime, Lynn and Connie appealed the appointment of the Public Administrator (they lost). The Missouri Lawyer’s Weekly published an article titled “Nephew Exploits Aunt’s Assets, Loses Chance to Administer Estate,” identifying Lynn Duvall by name. And Lynn Duvall’s insurance and real estate business began to suffer noticeably; he reasonably believed that was based on him having been tagged as a financial exploiter. By that time, Ruth Duvall had already died — still receiving Medicaid benefits.

What happened after Ruth Duvall’s death?

A year after Ruth Duvall died, the State of Missouri filed a claim seeking to recover $75,000 in Medicaid expenses paid during the last two years of her life. They demanded an accounting from Lynn and Connie. The State also filed a lien against the Duvall’s home (remember that 98% of the value of the house was in Aunt Mildred’s trust).

That litigation took seven years to resolve. In 2013, the Duvalls agreed to pay the Mildred’s estate $10,300. They immediately sued Yungwirth for legal malpractice. They sought recovery of everything they had paid back to Mildred’s estate, the reduction of value on their home, and the value of Lynn’s lost insurance business.

Mr. Yungwirth’s malpractice insurance carrier objected that their claim was too late. The statue of limitations for legal malpractice claims is usually five years. The defendants insisted that the five-year period began to run at least by the time the Duvalls’ new lawyer had begun demanding payment from Mr. Yungwirth, back in early 2008. The trial judge agreed, and dismissed their claim against (the now former) attorney Youngwirth.

Last week the Missouri Court of Appeals agreed, and upheld the trial court’s dismissal. The appellate court did not decide that Mr. Yungwirth’s actions were fine, or that Ms. Duvall’s Medicaid planning technique was fine. They just agreed that Lynn and Connie Duvall’s complaint was filed too late. Duvall v. Yungwirth, November 10, 2020.

What are the takeaway messages?

But what can Mildred Duvall’s complicated story teach us? We have a number of observations to suggest:

  1. Be careful about selecting your lawyer. Do you want someone who really knows estate planning and/or Medicaid planning? Check out their reputation, their online information, and recommendations from friends and colleagues. Did you meet the lawyer at a promotional seminar at the public library or a local restaurant? Make sure you’re not being sold something you don’t really want or need.
  2. Does a particular Medicaid planning technique sound almost too good to be true? Be suspicious and ask for input from others.
  3. When a lawyer agrees to meet with you and your family member together, that suggests something troublesome. We are supposed to represent just one person, not a whole family. Recognize that your interests and those of your family member might differ, and respect the lawyer’s efforts to maintain that separation.
  4. Recognize that even though an idea — and particularly a Medicaid planning technique — might work, it might also have unintended secondary effects. Like, for instance, triggering a referral to the local adult exploitation hotline.


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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.

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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.