## Facts

- Elmer Leitner was 95 years old and living at home.
- Elmer’s home was consistently dirty and infested with bugs.
- Elmer pushed dirty sheets under his bed and slept on a bare mattress rather than washing the sheets.
- To save money, Elmer refused to use his home furnace and instead used a small, inadequate space heater, leaving him cold in his home.
- During this period, Elmer received repeated phone calls from someone identifying himself as “George Washington.”
- The caller promised that if Elmer sent cash, Elmer would receive large prizes, including a car or $1 million.
- Elmer cashed in a $10,000 certificate of deposit and ultimately sent about $4,000 in cash to the caller, receiving nothing in return.
- Elmer’s adult son, Roger Leitner, petitioned the county court to be appointed guardian of Elmer’s person and conservator of Elmer’s estate.
- Elmer objected to the petition.
- At the hearing, Elmer’s physician testified that Elmer could make rational decisions.
- Elmer testified that he understood sending money to “George Washington” had been a mistake.
- The county court denied the request for a guardian of Elmer’s person, but found a conservatorship was appropriate and appointed Roger as conservator of Elmer’s estate.
- Elmer appealed, challenging the conservatorship and arguing Roger had not proved Elmer was incapacitated.

## Issues

1. Whether the evidence satisfied Nebraska’s statutory requirements for appointing a conservator for Elmer’s estate, despite medical testimony that Elmer could make rational decisions and Elmer’s acknowledgment that he had made a mistake.

## Decision

- The Nebraska Court of Appeals affirmed the county court’s order appointing Roger Leitner as conservator of Elmer Leitner’s estate.
- The denial of guardianship of Elmer’s person remained unchanged.

## Legal Principles

- A Nebraska court may appoint a conservator when statutory conditions are met showing the protected person is unable to manage property and business affairs effectively and protection is needed to prevent loss, waste, dissipation, or exploitation.
- Evidence of susceptibility to fraud and imprudent handling of assets may support a finding that financial affairs require court protection, even if the person can express some rational understanding.
- Protective orders may be limited to the area of demonstrated need; a court may deny guardianship of the person while ordering a conservatorship to address financial risk.
- On appellate review of probate matters, the appellate court reviews the record but gives weight to the trial court’s opportunity to observe witnesses and assess credibility.

## Conclusion

The Court of Appeals upheld the conservatorship because the record showed that, while Elmer retained enough capacity that a guardian for his person was unnecessary, his conduct and circumstances—especially his response to an obvious prize scam and resulting financial loss—supported the county court’s determination that his property interests needed protection through a conservator.


In re Guardianship and Conservatorship of Leitner, 2012 Neb. App. LEXIS 29 (2012)