IN RE: MANFRED G. KUZMA (and a consolidated case 1). (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This consolidated appeal arises from a dispute regarding the conservatorship of Manfred G. Kuzma, who had significant health issues and a multimillion-dollar estate. After Priscilla Merrigan, the first court-appointed conservator, challenged the bill of Robert Tamkin, Kuzma's long-time financial advisor, Tamkin challenged Merrigan's actions. Tamkin subsequently became the second court-appointed conservator and objected to Merrigan's accounting and decisions she made as Kuzma's conservator. When Tamkin and Merrigan could not reach a resolution, a judge of the Probate and Family Court conducted a trial that was expected to be two days but spanned six. The judge approved Merrigan's account and awarded her attorney's fees. The judge also approved fees for an attorney for Kuzma. The judge denied Tamkin's fees from the date of a pretrial conference and after. Tamkin and Kuzma appealed separately and the matters were consolidated. Kuzma died before oral argument, which we conclude mooted one issue: whether the judge erred in sua sponte removing Tamkin as conservator without notice.² We otherwise affirm.

Background. “We recite the facts as found by the trial judge, undisputed in the record, or in conformity with the judge's findings ․” Sutton v. Valois, 66 Mass. App. Ct. 258, 259 (2006). Tamkin had known Kuzma since 1983, though they were both married to other people until each was widowed --Kuzma when his husband died in 2008 and Tamkin when his wife died in 2010. Tamkin was Kuzma's longtime financial advisor.

Merrigan and Kuzma had been friends since 1980, and both lived in Wellesley. Kuzma designated Merrigan as his health care proxy in 2012. They had had a falling out in 2015 and Merrigan eventually moved from Wellesley to Cape Cod.

While Kuzma, then age sixty-five, was visiting Germany in 2017, he suffered a stroke and was hospitalized. The Wellesley police department contacted Merrigan and Tamkin to inform them of Kuzma's condition.

Tamkin and Merrigan cooperated to bring Kuzma back to the United States. For example, though Merrigan expressed to Tamkin that she no longer wished to be involved with Kuzma, because she was designated as Kuzma's health care proxy, she agreed to obtain medical information from Lahey Hospital to provide to Kuzma's physicians in Germany.

Following Kuzma's return to the United States, Tamkin pressed Merrigan to serve as Kuzma's conservator,³ which she did without compensation from April 2018 to September 11, 2019, after Tamkin challenged her. Though Merrigan was Kuzma's designated health care proxy, the record does not contain a statement by a physician expressly invoking the proxy pursuant to G. L. c. 201D, § 6.

Regardless, it is undisputed that Kuzma could not manage his affairs to transport himself back to the United States. Tamkin himself swore in an affidavit dated February 15, 2019, that “[a]s fall of 2017 went on, it became clear to me that [Kuzma] would need someone with the authority to handle all of his affairs, including legal, medical and financial.” Moreover, an evaluation by a doctor on June 29, 2018, found that Kuzma's memory and cognitive impairment was at that time severe and that he was unable to process information such that he could meaningfully express his preferences or make judgments regarding his affairs. The evaluation further found that Kuzma was unable to communicate effectively at that time.

After Kuzma was discharged from the hospital in the United States and then a rehabilitation facility, he moved to a senior living facility on Cape Cod known as “Maplewood at Mayflower Place” (Maplewood). The judge expressly found that Merrigan made this decision with Kuzma's consent. The judge further found that in 2018, Kuzma was not able to return home, though he wanted to do so eventually. Tamkin did not personally observe Kuzma from February 27, 2018, until July 2019,⁴ and he had no personal knowledge that any medical provider said Kuzma did not want to be at Maplewood. The judge credited Merrigan's testimony that she did not think it was safe for Kuzma to return to his Wellesley home at that time. The judge also credited the testimony of the former director of nursing at Maplewood that Kuzma was not able to live independently at that time. Kuzma would experience medical issues that sent him to the hospital, then to the nursing home, and back to independent living with assistance, and then the cycle would repeat.

For Kuzma to return home at that time and in the future, his home would have required extensive renovations.⁵ For example, steps throughout the first floor were potentially problematic for Kuzma's return. Moreover, photographs of the home documented its cluttered condition. Kuzma also would have needed around-the-clock care, but would not agree to have anyone live with him at his home.⁶ In addition, the judge found it would have been a breach of Merrigan's fiduciary duty to Kuzma to allow him to return home without the presence of appropriate staff.

Kuzma had the money for renovations and home care for at least a decade, though staying at Maplewood was considerably less expensive. The cost of care at Maplewood was $135,000 annually compared to $240,000 for care at home plus renovations estimated to cost between $61,000 and $200,000.

In July 2018, Merrigan petitioned to be Kuzma's guardian and to establish an estate plan for Kuzma, who had no ascertainable living relatives in the United States or Germany. The proposed will would have divided Kuzma's estate equally between Merrigan and two of Kuzma's friends.

In July 2019, Tamkin visited Kuzma and their relationship turned sexual. Approximately six months later, Kuzma's neurologist opined that at that time, Kuzma was capable of making certain decisions for himself, and had the capacity to continue a sexual relationship with Tamkin.

In August 2019, Tamkin hired his neighbor, Monique A. Gregg, a doctor of psychology, to evaluate Kuzma.⁷ She concluded that Kuzma could express his wishes and that he wanted Tamkin to serve as his conservator and health care proxy. On August 30, 2019, Tamkin filed a petition for removal of Merrigan and a request for appointment as Kuzma's conservator. He was represented by attorney Julia Hogan Drozdick.

Merrigan was willing to step aside, but raised concerns about whether Tamkin should be appointed conservator and suggested that an independent conservator would serve Kuzma's best interest. Eventually, Tamkin was appointed as conservator,⁸ and attorney Craig Spratt was appointed to represent Kuzma.⁹ Spratt presented a will to Kuzma that was drafted by Drozdick -- Tamkin's attorney -- and named Tamkin as personal representative and sole beneficiary of Kuzma's estate.

The judge encouraged the parties to reach a settlement concerning Merrigan's account, but they did not. A trial was set to consider Merrigan's account,¹⁰ which was expected to be two days but became six days. The judge found that Merrigan was “an honest, thoughtful and caring individual who did her very best to provide for Mr. Kuzma (her friend of 40 years) while she served as his Conservator” and acted in Kuzma's best interests. The judge expressed concern about the more than one-half million dollars in attorney's fees, which the court found “were generated primarily because of Mr. [Tamkin's] unrelenting challenge to Ms. Merrigan's decisions.” The judge ordered the conservator to pay (1) attorney Spratt $89,294 for representing Kuzma, (2) Merrigan's attorney's fees totaling $176,341, and (3) attorney Drozdick's fees for representing Tamkin in the amount of $80,261. The court rejected Drozdick's fees of an additional $215,845, including for services after June 10, 2020.

Sua sponte, the judge also removed Tamkin as conservator. The judge found that Tamkin was unsuitable to serve as Kuzma's conservator because (a) Tamkin's “pursuit of this litigation was unreasonable and unnecessarily caused [Kuzma] to incur[ ] thousands of dollars in legal fees”; (b) Tamkin's sexual relationship with Kuzma at the time he filed for appointment as conservator was “inappropriate,” especially because Kuzma was “extremely vulnerable and susceptible to undue influence”; (c) attorney Spratt presented a will to Kuzma that was drafted by Tamkin's lawyer and named Tamkin as personal representative and sole beneficiary of Kuzma's $3.5 million estate, all without notification to or approval of the court; and (d) Tamkin's response to the guardian ad litem about the existence of Kuzma's will was “evasive and not credible.”

Tamkin and Kuzma filed posttrial motions to vacate or alter and amend the judge's decree and findings. Tamkin also filed a motion to vacate the judge's sua sponte removal of Tamkin as conservator. The judge denied all of these motions, and this appeal followed.

Discussion. 1. Mootness. The death of Kuzma during the pendency of this appeal has rendered moot the issue of the judge's sua sponte removal of Tamkin as conservator. “A case is moot if a court can order ‘no further effective relief’ ” (citation omitted). Rizkallah v. Attorney General, 100 Mass. App. Ct. 533, 537 (2021).

Tamkin argues that the judge erred by removing Tamkin as conservator sua sponte because he did not receive adequate notice that his conduct would be an issue at trial. This issue is now moot because Kuzma's death terminated the conservatorship. See G. L. c. 190B, § 5-429 (d) (“A conservatorship terminates upon the death of the protected person ․”). We decline Tamkin's invitation to address the issue anyway.

2. Merrigan's accounts. “A conservator ․ shall act as a fiduciary and observe the standards of care applicable to trustees ․” G. L. c. 190B, § 5-416 (a). As such, conservators must “exercise sound judgment and reasonable skill and discretion in the discharge of their duties,” but “[t]hey are not to be held for honest errors of judgment.” Kinion v. Riley, 310 Mass. 338, 341 (1941). We review the judge's decision to allow or disallow a conservator's account for an abuse of discretion. See Rhode Island Hosp. Trust Natl. Bank v. Burns, 12 Mass. App. Ct. 251, 254-255 (1981).

Here, Tamkin does not contest the cost of the services rendered to Kuzma while Merrigan was his conservator.¹¹ Rather, Tamkin argues that Merrigan did not act prudently in her role as Kuzma's conservator for various reasons.

a. German home. First, Tamkin is incorrect that Merrigan acted unreasonably by omitting from her inventory a real estate property that Kuzma owned in Germany. Based on Merrigan's extensive testimony on this issue, the judge found that she did not include the German property in her inventory because she was unsure if Kuzma was the legal owner of the property, or if the property was still owned by the estate of Kuzma's mother. This finding was a credibility determination made by the judge, which we will not disturb.¹² See Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 185 (2020) (“We accord the credibility determinations of the judge who heard the testimony of the parties ․ [and] observed their demeanor, ․ the utmost deference” [quotation and citation omitted]). In any event, Tamkin was aware of the German property, and the omission did not undermine whether the expenses Merrigan listed were accurate or reasonable.

b. Merrigan's petition for guardianship and to establish an estate plan. Nor are we persuaded by Tamkin's assertions that Merrigan exceeded her conservatorship authority by (1) petitioning for guardianship of Kuzma; and (2) proposing an estate plan for Kuzma. We are aware of no legal authority that prevents a conservator from either petitioning for guardianship over a protected person or proposing an estate plan for a protected person.¹³

c. Contact with Tamkin. As for Tamkin's assertion that Merrigan discouraged Kuzma from contact with friends, he does not point to any of the judge's findings that were clearly erroneous on this point. Moreover, even if Tamkin's relationship with Kuzma was ultimately benign, it was not inappropriate for Merrigan to question whether Tamkin was taking advantage of Kuzma given his clear vulnerabilities.

3. Decision to place Kuzma at Maplewood. Tamkin contends that Merrigan did not have the authority to place Kuzma at Maplewood because Kuzma's healthcare proxy had never been formally invoked pursuant to G. L. c. 201D, § 6. As an initial matter, we note that to ensure that a health care proxy is properly activated, it is the best practice for the principal's physician to enter a written determination “that the principal lacks the capacity to make or to communicate health care decisions” into the principal's medical record. G. L. c. 201D, § 6. See Cohen v. Bolduc, 435 Mass. 608, 610 (2002) (principal's “attending psychiatrist entered in [principal's] record his determination that she was incapable of making or communicating health care decisions, thereby activating the proxy”). Moreover, as a patient's condition might improve or change, physicians and the proxy should continually assess whether a health care proxy is invoked.

To the extent this argument is not moot because Merrigan could be ordered to reimburse the estate for the cost of Maplewood, this argument fails because the judge found that Kuzma consented to the move to Maplewood. Thus, Merrigan did not need to rely on her proxy.¹⁴

To the extent Tamkin's argument is that Merrigan's decision cost the estate money it did not need to spend, it is undisputed that if Merrigan had made modifications to Kuzma's home and arranged for the care Kuzma would have required, Kuzma would have paid more in living costs than he did staying at Maplewood. In other words, even if we agreed with Tamkin's argument, the estate was financially better off for Kuzma's residence at Maplewood. Moreover, there was no evidence that during Merrigan's conservatorship Kuzma both expressed a desire to return to his home and had the ability to do so under conditions that would allow his return to be safe.¹⁵

4. Attorney's fees. Finally, Tamkin argues that the judge erred in awarding Merrigan attorney's fees from Kuzma's estate and denying Tamkin's request for attorney's fees from after June 10, 2020, the date of a pretrial conference. More specifically, Tamkin contends that the judge erred in finding that the case could have been settled before trial. We disagree.

General Laws c. 215, § 45, allows an award of fees and costs in contested probate cases “in the discretion of the court ․ as justice and equity may require.” “This language confers broad discretion on judges; it ‘certainly reaches beyond bad faith or wrongful conduct.’ ” Fern v. Baker, 106 Mass. App. Ct. 624, 634 (2026), quoting Estate of King, 455 Mass. 796, 805 (2010). We have upheld awards under § 45 “where a party's conduct prompted unnecessary litigation.” Roy v. Rubin, 35 Mass. App. Ct. 633, 635 (1993).

Here, the judge concluded that this case should not have gone to trial but nevertheless did because of Tamkin's unnecessary conduct. About one year before trial, Tamkin's attorney reported to the judge at a pretrial conference that Merrigan offered to withdraw her objection to the appointment of Tamkin as Kuzma's conservator if Tamkin would withdraw his objection to her accounts. Tamkin refused to withdraw his objection. The judge's determination that Tamkin unreasonably caused litigation was an issue best decided by the judge who, having heard the testimony and reviewed the documentation, was in the best position to determine the parties’ credibility and to weigh the evidence. See J.M. v. C.G., 492 Mass. 459, 467 (2023). We discern no abuse of the judge's considerable discretion in his decision to award Merrigan attorney's fees and to deny Tamkin's request for attorney's fees after the June 10, 2020, pretrial conference.¹⁶

Conclusion. To the extent an order or decree in this matter declared Tamkin as not suitable to serve as conservator, it is vacated not on the merits but because it is moot. See Aquacultural Research Corp. v. Austin, 88 Mass. App. Ct. 631, 634-635 (2015). For the same reason, the sua sponte order dated September 1, 2021, finding Tamkin not suitable and the order dated September 16, 2021, denying Tamkin's motion to vacate the sua sponte order are vacated. In all other respects, the September 1, 2021 consolidated decree and the September 16, 2021 order denying postjudgment relief are affirmed.

So ordered.

FOOTNOTES

2.   No substitution of an estate representative has been filed. Tamkin has notified the panel that he intends to proceed with his brief individually and in his capacity as former conservator for Kuzma and in his capacity as personal representative of Kuzma's estate. Kuzma's will was challenged and there is a separate appeal in that matter under docket number 25-P-556.

3.   Merrigan initially pushed back and suggested that Tamkin should be Kuzma's conservator because Tamkin was already Kuzma's financial advisor. Tamkin responded that he did not want to become Kuzma's conservator because Kuzma was Tamkin's “most lucrative client,” and Tamkin felt that he could earn more money as Kuzma's financial advisor as opposed to conservator.

4.   The parties dispute whether Merrigan kept Tamkin away from Kuzma. What is significant is that Tamkin did not have firsthand knowledge of Kuzma's condition at that time.

5.   Merrigan's testimony about the need for renovations was corroborated by another neighbor. Tamkin also testified that the home would have needed renovations for Kuzma to return to it.

6.   Tamkin agreed that Kuzma would need assistance if he moved home.

7.   Tamkin paid Gregg $10,000 for her examinations of Kuzma.

8.   Ultimately, five different people served as conservator for Kuzma, including Merrigan, Tamkin, attorney Arthur B. Crooks, attorney Sarah Long, and attorney Bruce A. Bierhans. None of them moved Kuzma back to his home in Wellesley.

9.   A guardian ad litem was appointed, and filed a report on December 6, 2019, regarding Tamkin's appointment as conservator.

10.   Another guardian ad litem was appointed to review the accounts filed by Merrigan, and filed reports in March and November 2020.

11.   The judge credited the guardian ad litem's conclusion that Merrigan managed the account “cleanly and prudently,” and that there was nothing in the account to suggest that Merrigan “lacked good faith in the supervision of the assets, and payment of the expense[s] associate[d] with Mr. Kuzma's needs.”

12.   We agree that it would have been the better practice to list all possible property.

13.   Insofar as Tamkin takes issue with Merrigan possibly being named a one-third beneficiary in the proposed estate plan, we disagree and note that Tamkin was subsequently named the sole beneficiary under Kuzma's last will, which was devised by Tamkin's attorney rather than Kuzma's.

14.   We also note that in the summer of 2018 one of Kuzma's physicians had stated in his medical record that his impairment was severe and that he was unable to process information to be able to recall, understand, or express his preferences meaningfully. This would be sufficient to invoke the proxy. See Cohen, 435 Mass. at 610.

15.   Tamkin's reliance on a guardian ad litem (GAL) report from December 2019 is unavailing. Merrigan had ceased serving as conservator several months earlier and that GAL report acknowledged that Kuzma's condition would improve and worsen, that the level of care he needed at that time required him to remain in a nursing home, and that he could not return home until he had met certain goals. Where five conservators -- including Tamkin -- kept Kuzma at Maplewood throughout their respective conservatorships, Tamkin's argument that Merrigan should have moved Kuzma back to his house has little merit.

16.   Merrigan's request for appellate attorney's fees and costs is allowed. Pursuant to Fabre v. Walton, 441 Mass. 9, 10-11 (2004), Merrigan may, within fourteen days of the issuance of this decision, submit an application for appellate attorney's fees and costs, with supporting materials. Tamkin and the estate shall have fourteen days thereafter to respond.