In the Matter of Frank Pedro.

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.

11