NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-324
IN THE MATTER OF FRANK PEDRO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Michaelyn Profio, a sister-in-law of Frank Pedro, appeals
from a decree and order issued by a judge of the Probate and
Family Court that struck her objection to a conservator's
petition for a license to sell Pedro's real estate. On appeal,
Profio claims that the judge erred in determining that she is
not an "interested person" under G. L. c. 190B, § 1-201 (24),
and thus has no standing to object to the sale of Pedro's home.
We affirm.
1. Background and prior proceedings. On March 21, 2019,
Bristol Elder Services, Inc. (BES), filed a petition for the
appointment of a conservator and a separate petition for the
appointment of a guardian for Frank Pedro.1 BES became involved
1BES filed a motion to consolidate the guardian and conservatorship matters, which was allowed by the court on March 25, 2019. after learning that Pedro, a seventy-nine year old widower, had
recently transferred his home to Profio for one dollar. Profio
is Pedro's deceased wife's youngest sister, with whom Pedro once
resided. Profio had also transferred Pedro's entire savings
account of approximately $480,000 to an account that Profio
controlled. Profio filed an objection to the appointment of a
conservator.
In July 2019, while the guardianship and conservatorship
cases were pending, the temporary conservator filed a verified
equity complaint against Profio and her husband. The action
alleged, among other things, that Profio exerted undue influence
and committed fraud in transferring Pedro's home and in
transferring the balance of his savings account to her. In sum,
the conservator claimed that at the time of the transfers, Pedro
lacked the capacity to make these decisions. In October 2019,
counsel filed a notice and appearance in the equity case on
behalf of Profio, and over several subsequent months the judge
granted multiple assented-to motions to continue the case as the
parties were in communication with one another. Profio,
however, never filed an answer to the equity complaint.
In April 2020, the conservator filed a motion for summary
judgment and, after Profio failed to file an opposition, he
filed a motion for default judgment, both joined by Pedro. The
judge allowed the motion for default judgment in a margin
2 endorsement. On May 4, 2020, the judge issued a judgment (which
he described as a declaratory judgment and order) finding that
Profio failed to defend the equity action and issuing orders
that, in essence, nullified the deed and ordered the funds
returned to Pedro.2 In June 2020, Profio filed a motion to
vacate the default judgment and stay the order, which in turn,
the conservator opposed.
In August 2020, three months after the entry of default
judgment, the parties voluntarily entered into an agreement
entitled "Stipulation for Judgment" (August stipulation). The
August stipulation was signed by the temporary guardian, the
temporary conservator, Pedro, and Profio.3 The August
stipulation was filed and docketed on August 26, 2020, in all
three matters; it was not, however, incorporated into a
judgment.
In the August stipulation, Profio agreed to several
provisions that bear on her appeal. First, Profio agreed that
the judgment in the equity case would stand and that she would
waive and withdraw all of her subsequent motions to vacate or
stay the default judgment. Second, she agreed that she would
2 The judge made findings that Pedro lacked the mental capacity to convey his home to Profio and was subjected to undue influence by Profio.
3 The attorney for Pedro signed the stipulation on his behalf.
3 withdraw her objection to the petitions for a conservator and a
guardian for Pedro and would no longer be a party to those
actions. Third, she agreed that she, her husband, and her
family would "release any past, current, or future claim in
relation to or against Mr. Pedro's estate and they will not
assert a privilege, right, or challenge to any will or
testamentary gifts, devises, or bequests, past, current or
future." Fourth, Profio expressly acknowledged that Pedro did
not wish to have any contact with her, and the parties agreed
that if in the future Pedro decided to contact her, the guardian
would facilitate communication.4 In August 2020, pursuant to the
stipulation, Profio withdrew her appearances from all three
cases and any pending motions and subpoenas.
On February 4, 2021, the temporary guardian filed a motion
in the conservator case to amend the August stipulation, as
there was a breakdown in the relationship between the temporary
conservator and the temporary guardian. During a review hearing
on the conservator and guardian matters, at which Profio and her
counsel were present, the parties referred to the August
stipulation relative to the equity action. The judge (a
different judge than who entered the default judgment) properly
4 The August stipulation also provided that Profio would receive a payment of $31,500. At oral argument, Profio's attorney confirmed that the $31,500 payment was received in full by Profio.
4 corrected them, noting that that the equity case was no longer
before him, as that matter had resulted in a judgment in May
2020. The judge confirmed that a default judgment had entered
on the equity case, and the only cases that remained pending
were the guardianship and conservator ones. The judge noted
that, despite the stipulation by the parties, the parties were
no longer in agreement as to who would serve as Pedro's
conservator. The judge stated the "stipulation has broken
down," and said "there is no stipulation . . . there is no
agreement."5 Accordingly, the judge scheduled the conservator
and guardian matters for trial. A trial did not occur, however,
because the parties later signed a separate stipulation (March
stipulation) in which all parties, including Profio, once again
agreed on a permanent conservator, and the judge issued a decree
appointing a permanent conservator for Pedro.
On July 13, 2021, the conservator filed a petition for a
license to sell Pedro's real estate, and notice was sent out to
several parties, including Profio. On August 23, 2021, Profio
filed an objection and, later, filed a thirty-six page affidavit
5 The judge further elaborated, "But the stipulation that I've seen in the past -- it included the equity action. The equity action went to judgment.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-324
IN THE MATTER OF FRANK PEDRO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Michaelyn Profio, a sister-in-law of Frank Pedro, appeals
from a decree and order issued by a judge of the Probate and
Family Court that struck her objection to a conservator's
petition for a license to sell Pedro's real estate. On appeal,
Profio claims that the judge erred in determining that she is
not an "interested person" under G. L. c. 190B, § 1-201 (24),
and thus has no standing to object to the sale of Pedro's home.
We affirm.
1. Background and prior proceedings. On March 21, 2019,
Bristol Elder Services, Inc. (BES), filed a petition for the
appointment of a conservator and a separate petition for the
appointment of a guardian for Frank Pedro.1 BES became involved
1BES filed a motion to consolidate the guardian and conservatorship matters, which was allowed by the court on March 25, 2019. after learning that Pedro, a seventy-nine year old widower, had
recently transferred his home to Profio for one dollar. Profio
is Pedro's deceased wife's youngest sister, with whom Pedro once
resided. Profio had also transferred Pedro's entire savings
account of approximately $480,000 to an account that Profio
controlled. Profio filed an objection to the appointment of a
conservator.
In July 2019, while the guardianship and conservatorship
cases were pending, the temporary conservator filed a verified
equity complaint against Profio and her husband. The action
alleged, among other things, that Profio exerted undue influence
and committed fraud in transferring Pedro's home and in
transferring the balance of his savings account to her. In sum,
the conservator claimed that at the time of the transfers, Pedro
lacked the capacity to make these decisions. In October 2019,
counsel filed a notice and appearance in the equity case on
behalf of Profio, and over several subsequent months the judge
granted multiple assented-to motions to continue the case as the
parties were in communication with one another. Profio,
however, never filed an answer to the equity complaint.
In April 2020, the conservator filed a motion for summary
judgment and, after Profio failed to file an opposition, he
filed a motion for default judgment, both joined by Pedro. The
judge allowed the motion for default judgment in a margin
2 endorsement. On May 4, 2020, the judge issued a judgment (which
he described as a declaratory judgment and order) finding that
Profio failed to defend the equity action and issuing orders
that, in essence, nullified the deed and ordered the funds
returned to Pedro.2 In June 2020, Profio filed a motion to
vacate the default judgment and stay the order, which in turn,
the conservator opposed.
In August 2020, three months after the entry of default
judgment, the parties voluntarily entered into an agreement
entitled "Stipulation for Judgment" (August stipulation). The
August stipulation was signed by the temporary guardian, the
temporary conservator, Pedro, and Profio.3 The August
stipulation was filed and docketed on August 26, 2020, in all
three matters; it was not, however, incorporated into a
judgment.
In the August stipulation, Profio agreed to several
provisions that bear on her appeal. First, Profio agreed that
the judgment in the equity case would stand and that she would
waive and withdraw all of her subsequent motions to vacate or
stay the default judgment. Second, she agreed that she would
2 The judge made findings that Pedro lacked the mental capacity to convey his home to Profio and was subjected to undue influence by Profio.
3 The attorney for Pedro signed the stipulation on his behalf.
3 withdraw her objection to the petitions for a conservator and a
guardian for Pedro and would no longer be a party to those
actions. Third, she agreed that she, her husband, and her
family would "release any past, current, or future claim in
relation to or against Mr. Pedro's estate and they will not
assert a privilege, right, or challenge to any will or
testamentary gifts, devises, or bequests, past, current or
future." Fourth, Profio expressly acknowledged that Pedro did
not wish to have any contact with her, and the parties agreed
that if in the future Pedro decided to contact her, the guardian
would facilitate communication.4 In August 2020, pursuant to the
stipulation, Profio withdrew her appearances from all three
cases and any pending motions and subpoenas.
On February 4, 2021, the temporary guardian filed a motion
in the conservator case to amend the August stipulation, as
there was a breakdown in the relationship between the temporary
conservator and the temporary guardian. During a review hearing
on the conservator and guardian matters, at which Profio and her
counsel were present, the parties referred to the August
stipulation relative to the equity action. The judge (a
different judge than who entered the default judgment) properly
4 The August stipulation also provided that Profio would receive a payment of $31,500. At oral argument, Profio's attorney confirmed that the $31,500 payment was received in full by Profio.
4 corrected them, noting that that the equity case was no longer
before him, as that matter had resulted in a judgment in May
2020. The judge confirmed that a default judgment had entered
on the equity case, and the only cases that remained pending
were the guardianship and conservator ones. The judge noted
that, despite the stipulation by the parties, the parties were
no longer in agreement as to who would serve as Pedro's
conservator. The judge stated the "stipulation has broken
down," and said "there is no stipulation . . . there is no
agreement."5 Accordingly, the judge scheduled the conservator
and guardian matters for trial. A trial did not occur, however,
because the parties later signed a separate stipulation (March
stipulation) in which all parties, including Profio, once again
agreed on a permanent conservator, and the judge issued a decree
appointing a permanent conservator for Pedro.
On July 13, 2021, the conservator filed a petition for a
license to sell Pedro's real estate, and notice was sent out to
several parties, including Profio. On August 23, 2021, Profio
filed an objection and, later, filed a thirty-six page affidavit
5 The judge further elaborated, "But the stipulation that I've seen in the past -- it included the equity action. The equity action went to judgment. I've got two separate actions; I've got a guardianship and I've got a conservatorship. I'm going to deal with those separately. So, if you want to come up with a stipulation on either of those. But there's not going to be a global agreement; it’s going to be done separately. But I'm going to try both matters on the same day."
5 of objections requesting, among other things, that the judge
order the conservator to file a financial plan and tax returns
and that the judge order the conservator to rent rather than
sell Pedro's home. In response, the conservator filed a motion
to strike Profio's objection, contending that Profio was not an
interested party under G. L. c. 190B, § 1-201 (24). The judge,
after conducting a hearing, found that Profio lacked standing to
object to the petition for a license to sell the real estate.
The judge allowed the conservator's motion to strike Profio's
objection and prohibited Profio, and her counsel, from filing
any further pleadings without first obtaining leave from the
court. This appeal followed.6
2. Discussion. a. The role of a conservator and the sale
of real estate. "A conservator is a nonjudicial person
fulfilling quasi judicial functions . . . 'who is appointed by a
court to manage the estate of a protected person.'" Hornibrook
v. Richard, 488 Mass. 74, 80 (2021), quoting G. L. c. 190B, § 1-
201. "Typically, a conservator manages properties and pays
bills for any work done." Hornibrook, supra. The role of
conservator includes paying bills, collecting and retaining
assets, and filing reports with the court regarding the
We note that there is a pending separate appeal, Matter of 6
Pedro, 23-J-708, pertaining to the sanctions ordered by the judge against Profio.
6 expenditure of assets based upon the needs of the protected
person. See G. L. c. 190B, § 5-416. If a conservator
determines that it is necessary to sell the protected person's
real estate, the conservator must comply with the provisions of
G. L. c. 202. Accordingly, the conservator must file a petition
for a license to sell real estate in the Probate and Family
Court, after which the judge will review the petition to
determine whether the sale would benefit the protected person.
See G. L. c. 190B, § 5-423 (d). The conservator must provide
notice of the petition to sell, as "[n]o license to sell real
estate shall be granted to a guardian or conservator until such
notice as the court orders has been given to the next of kin of
the ward, to all his heirs apparent or presumptive, and to all
persons interested in the estate." G. L. c. 202, § 11.
b. Interested person. In order to intervene in an action
taken by a conservator,7 a party must be an "interested person."
7 General Laws c. 202, §§ 1-22, which provides for the procedures for conservators, guardians, executors, and administrators to sell private property, are silent on the question of when a party may object to the sale. Some provisions of the Uniform Probate Code do provide a procedure for interested persons to file affidavits of objection. See, e.g., G. L. c. 190B, § 1-401. In the case of a petition to sell real estate, however, the appropriate procedure for objecting was to file a motion to intervene pursuant to Mass. R. Civ. P. 24, 365 Mass. 769 (1974). Accordingly, we analyze Profio's objection to the sale as a motion to intervene.
7 Under G. L. c. 190B, § 1-201 (24), the term interested person
includes:
"heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claims against a trust estate or the estate of a decedent, ward, or protected person. It also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons. The meaning as it relates to the particular persons may vary from time to time and shall be determined according to the particular purposes of, and matters involved in, any proceeding."
The determination of whether someone is an interested person,
and thus has standing to intervene or object, is generally a
mixed question of fact and law. In such cases, a judge has
discretion to find facts, which we review for clear error, but
the application of the facts to the law is reviewed de novo.
See Guardianship of B.V.G., 474 Mass. 315, 320 (2016).
In a written decision, the judge recognized that an
interested person can include individuals not specifically named
in G. L. c. 190B, § 1-201 (24), and requires a case-by-case
analysis. Upon reviewing the facts in this case, the judge
concluded that Profio's past actions of transferring Pedro's
home and his bank account funds to her at a time in which he
"allegedly lacked competency" and then rescinding those actions,
did not support a finding that she was an interested person. On
appeal, Profio claims that the judge erred because, while she
admittedly does not fall within an enumerated category such as a
8 child or a spouse of Pedro, her demonstrated interest in Pedro's
well-being renders her an interested person under G. L. c. 190B,
§ 1-201 (24).
We may assume that Profio is correct that the default
judgment has no preclusive effect, so that the question is
actually an open one whether undue influence was used with
respect to the transfers of property and money. Profio asserted
that the property was transferred to shield the assets from
Medicaid's asset limits, and the money transferred to prevent
its theft by another of Pedro's sisters-in-law, all under the
advice of counsel. We may also assume the August stipulation in
which Profio agreed not to be a party in this case is of no
force and effect. Indeed, we may assume that, as Profio claims,
a proper assessment would have resulted in the conclusion that
she has standing.
Even under these assumptions, we affirm. The judge heard
arguments from both counsel for the conservator and counsel for
Profio. The judge also considered the written memoranda
submitted in support of and in opposition to the petition to
sell Pedro's real estate. This included voluminous documentary
evidence including Profio's thirty-six page affidavit filed by
counsel regarding her objections.
At the end of his decision on the motion to strike, the
judge rejected Profio's objections on the merits, though he had
9 found she lacked standing. She had expressed concern, as had
the guardian ad litem, that there had been no explanation by the
conservator of where Pedro's other assets had gone such that
selling his house was necessary. She also objected that the
conservator had not shown why renting the house for income was
not a financially superior course of action. The judge stated
in his decision that "the Court does not agree with Prof[]io
that the Affidavit of Objections states specific facts and
grounds to support an objection to the License to Sell." He
further pointed out that Profio's affidavit listed "numerous
objections and issues regarding the Conservator's performance"
but that it lacked detail as to why the home should not be sold,
when Pedro had no plans to return.
Consequently, even if the judge erred in concluding Profio
lacked standing, which we do not decide, that error was
10 harmless, as his conclusion would have been the same had he
found standing.8,9
Order striking objection to petition to sell real estate and granting license to sell affirmed.
By the Court (Rubin, Henry & Walsh, JJ.10),
Clerk
Entered: May 1, 2025.
8 We note that the conservator, characterizing Profio's appeal as frivolous, requests an award of appellate attorney's fees. We decline to award attorney's fees.
9 We do not address Profio's arguments related to the Superior Court judge's calculation of attorney's fees, because that matter of sanctions is currently pending before a single justice pursuant to G. L. c. 231, § 6G. See note 6, infra.
10 The panelists are listed in order of seniority.