concurring.
[¶ 21] Although this case came to us on the appeal by the trustee-guardian on a number of questions, I agree that we must remand for a new trial on all the possible questions because all are intertwined.
[¶ 22] I worry whether some of our remand should be phrased differently because I fear how we say what we are not deciding might be confusing. It is my understanding that, other than our conclusion that the trial court should have decided all issues raised by the parties in one proceeding, we are deciding virtually nothing else about this case, and the trial court’s prior findings are all open for redetermination.
[¶ 23] I am also apprehensive that the references to “the inherent conflict in Mang-nall’s dual capacities as trustee and guardian” and “the question of the propriety of his actions” in the last paragraph of the lead opinion in this case may mislead the trial court to think that we are condemning Mang-nall’s conduct as improper. I do not believe we are, and I hope everyone recognizes the importance of the references to the facts that “[t]he Trust document explicitly recognized the same person could serve as both trustee and guardian, and the same county judge appointed Mangnall to both positions.”
[¶ 24] I am equally apprehensive that someone may think that the conclusion in footnote 1, that “the trial court did not decide the extent to which trust assets were available to pay for the care of Mary Adams,” casts doubt on whether this trust may be a “medicaid qualifying trust” under Allen v. Wessman, 542 N.W.2d 748 (N.D.1996). The trial court’s main memorandum decision in this case was entered on December 29, 1995, before Allen v. Wessman was decided, and the formal findings, conclusions, and order for judgment were prepared very soon after that decision. Therefore, I believe this remand of the entire case for a new trial is particularly appropriate to fully develop the concept of a medicaid qualifying trust here.
Under this congressional directive for Medicaid eligibility, trust assets are “deemed available” when a trustee has any discretion to distribute them to the settlor despite the purpose of the trust, its irrevo-cability, or the actual exercise of discretion.
Allen v. Wessman, 542 N.W.2d at 752. If this trust was a medicaid qualifying trust, it seems to me very doubtful whether the use of trust funds by the trustee-guardian for the necessary care of the surviving settlor and primary beneficiary can be a breach of trust.