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$415,000 in damages, and that the probate judge’s allocation of
damages effectively transferred the $1 million straight from the
guardian’s interim financial holding account to the Management
Trust without Clyde’s ever having control.
We think the Commissioner is underestimating the importance
of the Probate Court in deciding to whom the $1 million belonged.
The Hickses’ lawyers were very careful in leaving the unallocated
settlement funds with Society National until the beneficiaries
were determined. This acknowledged the Probate Court’s broad
discretionary authority as “superior guardian” of a minor under
Ohio law. That status means that the Probate Court has the power
and authority to control the actions of the minor’s guardian and
act directly to ensure that the minor’s best interests are being
considered. Ohio Rev. Code Ann. sec. 2111.50 (Anderson 2002).
It also means that the Probate Court has to approve any
settlement which the minor’s guardian reaches before it can take
effect. See Ohio Rev. Code Ann. sec. 2111.18 (2007). Because of
this essential role the Probate Court plays under Ohio law, we
hold that the $1 million in question didn’t belong to anyone
until the Probate Court said it did.
The Commissioner’s attack doesn’t end with that quibble
about possession of the settlement proceeds under Ohio law. He
also argues that the allocation was a sham. This is itself a
problem because the statute and regulation don’t tell us to
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