Estate of Kimberly A. Hicks, Deceased, Key Trust Company of Ohio, N.A., Administrator - Page 17




                                       - 17 -                                         
          luck.  The loan was a way to tack between these two dangers.  It            
          ensured that the money would be there during Kimberly’s minority,           
          but with a towline attached so that if Kimberly were ever forced            
          to rely on Medicaid, the money could be taken out of the                    
          Management Trust and she could qualify after spending down only             
          $450,000 rather than nearly $1.5 million.  Her parents would then           
          have the resources from which they could continue to meet her               
          needs that were unmet by Medicaid.                                          
               In deciding whether the allocation as a whole lacked                   
          substance, we return again to the important role of the Probate             
          Court under Ohio law.  Probate courts’ decisions in this area are           
          discretionary--as the Hickses’ personal injury lawyer credibly              
          testified:  “Some judges don’t like special-needs trusts, because           
          some judges think that that money should go to the state, and               
          that’s just a strong philosophical belief.  Some judges don’t               
          mind the loss-of-society claims; some judges do.”  And unless               
          there is an abuse of discretion, an Ohio appellate court “will              
          not substitute its judgment for that of the trial court.”  In re            
          Estate of Steigerwald, 2004-Ohio-3834, at par. 17 (Ohio Ct. App.            
          2004) (discussing allocation of wrongful death suit).  Ohio is,             
          moreover, wonderfully blunt about why it gives Probate Courts               
          this degree of deference: to “protect minors against others whose           
          interests may be adverse to theirs, especially their parents.”              
          In re Guardianship of Matyaszek, 824 N.E.2d 132, 143 n.7 (Ohio              







Page:  Previous  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  Next 

Last modified: November 10, 2007