accessible vehicle transportation disbursements · needs, (3) coordination and review of the...

© Copyright November 2008 For Permission to reprint please contact Kate Dussault at:

[email protected] or (206) 886-0677

Accessible Vehicle Transportation Disbursements

By Kate and William Dussault

The goal of this article is to assist the Trustee in understanding the issues and concerns

related to accessible vehicle disbursements from a Special Needs Trust and provide potential

solutions to what can often be a very difficult disbursement issue. One of the most common

requests to a Special Needs Trustee is for the purchase of a vehicle and/or transportation services

for the disabled beneficiary. Unfortunately, this issue can be very complex. The Trustee must

consider the following:

• What is the most appropriate vehicle for the trust beneficiary?

• What safety concerns must be evaluated?

• How will the vehicle title issues be handled?

• What is the exposure for vicarious liability to the Trustee depending on the titling

of the vehicle?

• What is the liability of the Trustee for purchase of an unsafe or inappropriate

vehicle?

• How will ongoing maintenance costs be managed and implemented?

• What level of automobile insurance should be considered and how does the

Trustee insure the proper insurance is maintained?

• How often will the vehicle be replaced and how will vehicle disposal issues be

handled?

• What happens to a vehicle at the trust beneficiary’s death?

The following case studies and discussions are from real cases we have consulted on over

the past several years. Each case is an example of how often vehicle disbursement issues can

become very problematic for the Trustee.

Case Study 1- Safety and Appropriate Vehicle Selection:

Sally is a single mother of Kyle, a 7 year old child who experiences cerebral palsy. He

has several medical concerns, and utilizes a wheelchair for mobility. Sally is a petite woman.

Kyle is approximately 50 pounds and is almost as tall as Sally. He continues to grow. He suffers

from seizures. Often when he is picked up he will have a seizure and becomes very rigid making

him difficult to carry and manage. Sally and Kyle were parties to a personal injury action and

received a settlement for Kyle’s birthing injuries. The funds were placed into a Special Needs

Trust for Kyle’s benefit. A Life Care Plan developed as a part of the litigation recommended the

purchase of an accessible vehicle for Kyle. The plan did not specify the type of vehicle or

appropriate resources to obtain the vehicle. The Trustee had no expertise in accessible



transportation options nor did Sally. The Trustee communicated to Sally that they would approve

$48,000 to purchase an accessible vehicle based upon the life care plan specified dollar amount.

Sally went to her local Honda dealer and purchased a van. She was then referred by the Honda

dealer to a local mobility provider to “install a lift”. The lift was installed as a “bolt on”. The

installed lift did not work properly and created problems with the overall function of the vehicle.

The lift was removed. The local mobility dealer then sold Sally a portable aluminum ramp

weighing approximately 40 pounds. Sally must now lift the ramp in and out of the vehicle. The

ramp slope is too steep and does not comply with ADA standards creating a safety risk to both

Kyle and Sally. To place Kyle in the vehicle she must utilize the ramps which are heavy for her,

awkward and unsafe. Sally became frustrated at the inconvenience and no longer used the ramp.

She then lifted Kyle out of his wheelchair, carried him through the side passenger door of the

van, placed him into the standard vehicle seat behind the driver’s seat and strapped him in. She

then lifts the wheelchair into the van. The wheelchair is unsecured. The safety issues are obvious.

It is just a matter of time before Sally and/or Kyle are injured using the van as it is now

configured. When she explains to the Trustee that the van she purchased is not working for her

the Trustee is reluctant to sell the van. The van is less than 6 months old and the depreciated

value of the vehicle is less than the amount owed on the purchase. The trustee determines it is

not a prudent financial decision to sell the van at this time as it would result in a significant

financial loss to the trust.

Unfortunately, Sally and Kyle’s situation is not uncommon. In many situations the

disabled individual and/or family member often find the vehicle option they have selected to

meet their transportation needs is unsafe, inappropriate and expensive. This case illustrates a

variety of concerns the Trustee must consider when obtaining and reviewing accessible vehicle

recommendations:

• The disabled individual’s abilities, limitations, health issues, and time frame in

which the mobility device and vehicle will “match” the person with a disability’s

needs.

• The overall family circumstance

• The primary caretaker’s situation and safety

• Safe and appropriate accessible transportation options

• Safety education and acceptance of personal choice

• Evaluation of costs and funding options

• Identification of appropriate resources for obtaining and funding accessible

transportation options

Community access for individuals who experience disabilities is a key component to their

quality of life and independence. However, as illustrated above, the challenge for many

individuals who experience disability and/or their family members is obtaining safe, appropriate

and affordable private accessible transportation options. The Trustee will often and should play

an essential role in obtaining wheelchairs and/or accessible vehicles for the disabled consumer



and/or their family member(s). As a result it is critical that the Trustee be able to recognize

unsafe private accessible transportation situations and insist on obtaining a proper evaluation.

The evaluation must consider all safety concerns and properly educate the trust beneficiary

and/or family member(s) on safety and appropriate options available. This material will provide

basic information which will assist the Trustee in providing appropriate

recommendations/referrals to their clients.

General Safety Issues:

Safety considerations for all accessible transportation options must include: (1) a review

of the personal safety of the individual who experiences a disability, their family and primary

care providers (if utilized), (2) ensuring the basic accessible transportation safety guidelines are

met and the recommended vehicle and/or products are appropriate to meet the client’s specific

needs, (3) coordination and review of the wheelchair selection and transport safety and (4)

appraisal and selection of appropriate wheelchair restraint systems within the vehicle.

1. Personal Safety: Each client’s situation will be unique and will require a comprehensive

evaluation to ensure safety and provide appropriate recommendations. In some cases the

disabled consumer and/or family member may have unrealistic expectations and/or

desires for a particular vehicle selection. Thus, it is also imperative to properly educate

the client on safety concerns and appropriate vehicle options.

2. Accessible Transportation Standards and Safety: Not all accessible transportation options

will be safe or appropriate for meeting the client’s individual circumstances. Thus, part of

meeting the safety needs will be dependent upon “fitting” the client with appropriate

accessible transportation or “mobility transportation” option(s). It is also important to

understand the underlying safety of the mobility transportation products. Some accessible

transportation options should not be considered at all due to the lack of safety controls

and standards.

The first step in understanding mobility transportation safety is to define existing

safety standards and regulations. While there are some existing safety standards and

regulations that apply to vehicles that are modified, the current standards are not

equivalent to safety standards applicable to non-modified vehicles. This area is still

developing for modified vehicles. The primary organizations that have developed the

current modified vehicle guidelines and safety standards are as follows:

National Mobility Equipment Dealers Association (NMEDA): This organization is the primary resource for adaptive vehicle modifications. “�MEDA is a non-

profit trade association of mobility equipment dealers, driver rehabilitation

specialists, and other professionals dedicated to broadening the opportunities

for people with disabilities to drive or be transported in vehicles modified with



mobility equipment. All members work together to improve transportation

options of people with disabilities.” www.nmeda.org. The board and membership consists primarily of mobility manufacturers and dealers and currently has no disabled consumer representation. It is not an independent third party organization or information source. However, it has developed the industry’s only national accreditation program for the mobility industry governing personal transportation. This is the Quality Assurance Program (QAP). The goal of the program is to ensure that participating dealers abide by specified guidelines and safety standards.

National Highway Traffic Safety Administration (NHTSA): This government agency is primarily responsible for all vehicle transportation safety issues and concerns. Under the National Traffic and Motor Vehicle Safety Act (enacted in 1966) the U.S. Secretary of Transportation was required to promulgate Federal Motor Vehicle Safety Standards (FMVSS). Today the NHTSA is responsible for oversight of the FMVSS. These standards are defined as a “minimum standard

for motor vehicle performance or motor vehicle equipment performance, which

is practicable, which meets the need for motor vehicle safety, and which

provides objective criteria”. www.nhtsa.dot.gov. These standards apply to all vehicles. As a part of these standards, primary manufacturer’s (i.e. Dodge, Honda) must meet rigid crash testing requirements and are rated on “crashworthiness”. Crash testing measures the vehicles ability to handle front, side and rear impact collisions, fuel spillage and fire safety, and roll over scenarios. These primary safety standards are important and become even more important when evaluating how a modified vehicle will perform in a crash.

Anytime a vehicle is structurally modified (i.e. raised roof and/or lowered floor, the insertion of a ramp, etc.) it must be re-crash tested after the modifications have been completed to ensure its safety and define the crashworthiness. This requires a second rigorous crash testing process. The testing process is a good assessment of the vehicle’s structural design. Manufacturers of accessible vehicles should comply with FMVSS. Unfortunately, some manufacturers and/or local mobility dealers/companies will modify a vehicle and do not comply with these standards. This is because re-crash testing to meet FMVSS is expensive and is currently not mandatory for modified vehicles. Thus, it is important for the Trustee to ensure all recommendations to adaptive transportation options comply with existing mobility vehicle guidelines and safety standards.

Once the selected mobility transportation option has been determined to comply with the standard industry safety guidelines the next step is to evaluate the appropriateness of the mobility option to the client’s specific situation. Outlined below is a detailed discussion of private adaptive transportation options.

3. Wheelchair Review: Safety testing and standards for occupied wheelchairs used as seats

in vehicle transportation are currently in the infancy stages. Unfortunately, many

wheelchairs are not properly safety rated for transportation use within a vehicle. Since the



Trustee will often purchase wheelchairs for their clients in addition to private accessible

transportation options the two items should be reviewed and coordinated at the same time

whenever possible. The specifics of an overall proper wheelchair evaluation are beyond

the scope of this article. However, it is important to understand the importance of the

wheelchair selection as it relates to vehicle transportation.

The wheelchair recommendations should consider (a) how the client will utilize the

chair in relation to vehicle transportation (occupied or unoccupied), (b) the safety rating

and WC19 compliance for an occupied wheelchair used as a seat in vehicle

transportation, and (c) the occupied wheelchair fit and placement within the accessible

vehicle or storage of an unoccupied wheelchair within the vehicle.

Both the modified vehicle and occupied wheelchair used as a seat for vehicle

transportation should be crash tested and evaluated for specified safety standards. Safety

standards for occupied wheelchairs are defined under the WC19. In April 2000 the US

standard, “WC19 Wheelchair Used as Seats in Motor Vehicles” was approved. Although

this voluntary standard was established eight years ago one of the primary barriers to full

implementation is the lack of awareness. Any Trustee purchasing wheelchairs and/or

accessible transportation options must be aware of these standards and which wheelchair

manufacturer’s currently provide WC19 compliant wheelchairs. For additional

information on WC19 standards please see the Rehabilitation Engineering Research

Center on Wheelchair Transportation Safety (RERC WTS) website at: www.rercwts.org.

Referring to the wheelchair manufacturer’s websites and/or manuals will also provide

important information and/or disclaimers regarding the use of occupied wheelchairs in

vehicle transportation settings.

An additional consideration to review when recommending a wheelchair and/or

accessible vehicle option is the overall fit and placement of the occupied wheelchair

within the vehicle or the storage of the wheelchair if unoccupied. Storage of other durable

medical equipment (DME) items (i.e. suctioning devices), safety items (i.e. vehicle

battery charge packs) and general items (i.e. umbrellas, etc.) should also be considered.

4. Wheelchair Tiedown and Occupant Restraint Systems (WTORS): Another important

safety consideration is securing the wheelchair within the vehicle. Whether the

wheelchair is occupied or unoccupied ensuring a proper wheelchair restraint system is

critical. An unsecured wheelchair poses a significant safety hazard for the individual who

experiences a disability, other drivers/passengers in the vehicle, and in the event of a

collision; other individuals outside of the vehicle. There are three basic wheelchair

restraint systems (a) traditional manual four point tie down system, (b) manual retractable

four point tie down products and (c) automatic restraint systems.

a. The traditional manual four point tie down system consists of four straps with

manual ratchet mechanisms. The user must identify four separate structurally



appropriate points on the wheelchair, secure the straps to the wheelchair and then

secure the brackets in the floor of the vehicle. The manual ratchet system is then

used to tighten the wheelchair down. The disadvantage of this system is many

disabled consumers are unable to utilize this system independently. Additionally,

many family members and/or care providers find the systems cumbersome and

difficult to use thus often opt not to use the restraint system at all.

b. The manual retractable restraint systems are similar to the traditional four point tie

downs in that they also utilize straps which are secured to four points on the

wheelchair and vehicle floor as outlined above. However, the ratchet system is

retractable and is similar in its function to a typical retractable seat belt. Thus,

they are slightly easier to utilize. However, some disabled consumers may not be

able to use them independently and family members/care givers often will not

properly utilize them or use them at all. A sample retractable strap restraint

product is the Q-Straint , please see: www.qstraint.com.

c. Automatic restraint systems do not use a strap and ratchet approach at all. Rather

a specialized electronic box is bolted to the floor of the vehicle. Then a steel bolt

is secured onto the bottom of the wheelchair. The wheelchair is then guided over

the plate in the floor and a mechanized system latches the wheelchair into the

electronic box on the floor. The electronic box “looks” for the wheelchair and if it

is not properly latched an alert alarm will sound. There is an override system for

the alert alarm if the wheelchair is not in use within the vehicle. The system uses

electronics to operate but also has manual overrides. The biggest advantage of this

system is it is easy to use and has added “fail safes”. However, the direction of

entry onto the electronic box (forward vs. rear) is critical so must be carefully

evaluated. Caution: Not all wheelchairs are compatible with this product thus the

model and type of wheelchair must be specified to ensure this system is an



appropriate option. An example of this product is the EZ-Lock. Please see:

www.ezlock.net.

These products should meet FMVSS established for safe transportation as well.

However, the key factor to ensure the safety with these products is proper use. Thus, the

end users must be properly educated and trained to use these products.

In addition to securing the wheelchair within the vehicle a wheelchair occupied

passenger should also be safely restrained with the use of the vehicle specialized seat belt

lap/shoulder belt systems. These systems are called Occupant Restraint Systems (ORS).

This should always be included with the overall recommendation for adapted

transportation. Caution: The wheelchair positioning belts should not be considered

appropriate restraints for a wheelchair occupied passenger. However these are often

important components to consider for individuals who require assistance with upper body

support.

Overall safety for the individual who experiences a disability (whether as a driver or

passenger), their family members and/or caregivers is the paramount consideration for all

adaptive transportation recommendations. One additional area of caution when reviewing

mobility transportation options is to ensure the individual(s), organization or company providing

the recommendations to the disabled consumer are knowledgeable and as objective as possible.

Unfortunately, when utilizing non-independent third party adaptive mobility organizations or

companies which have a primary focus on “selling particular product(s)” the recommendations

may be based more in “selling product” than in safety and appropriateness. Thus, the Trustee

should consider using specialized rehabilitation professionals to obtain basic safety evaluations

and recommendations and/or look for organizations/companies which offer a variety of

accessible transportation options.

Private Adaptive Transportation Options:

Once the basic safety and personal needs are properly evaluated the Trustee should have

a fundamental understanding of the various private adaptive transportation options available in

the market today. There are two primary adaptive transportation or “mobility conversions”



available to individuals who experience disabilities (1) add on lift systems and products and (2)

fully manufactured van conversions which incorporate a lift or ramp system into the overall

vehicle construction. It is essential to understand the differences as well as the appropriate

application for these products.

1. Add-On Products: These products are sometimes referred to as “bolt on” products.

There is a wide range of these types of products available on the market today. From

a historical perspective it was the advent of “bolt on” lift systems which created the

first opportunity for private accessible transportation for persons with disabilities.

Thus, many folks are more familiar with these types of products. However, as the

demand for safe and appropriate “mobility transportation” has increased additional

options have become available.

a. “Bolt-On” Lift Systems: The most traditional application of a “bolt on” lift

product is the use of a typical full size van with a lift installed for access. For

many years this was the most viable and popular option. While a full size van may

be appropriate for some clients there are many considerations which must be

reviewed including the following:

• Vehicle Selection: Not all full size vehicles may be appropriately

modified and the standard lift systems may not work correctly with

the vehicle. In some cases it may be appropriate to add on a lift

system to an existing vehicle. However, vehicle selection in this

process is critical and safety in these situations may be

compromised. The addition of the weight of the bolt-on lift system

and the additional weight of the wheelchair used by the disabled

consumer can radically affect the braking capacity of the vehicle.

The weight of the lift attached to the side of the vehicle can also

cause torsion against the vehicle frame—particularly when the lift

is fully extended and the wheelchair user is on the lift. In today’s

market there are full size vehicle mobility manufacturers which

ensure all structural modifications made (i.e. raised roof/doors,

lowered floors, lifts/ramp systems) meet the QAP safety standards

as established by NMEDA. However, be advised in the majority of

these situations the vehicles are not re-crash tested to meet FMVS

Standards. Caution: Bolt on ramp systems which create steep

ramp access should be avoided as these create significant safety

concerns.

• “Conversion” Process: Many local mobility dealers and/or other

conversion manufacturing companies will provide a variety of

conversion features. This may include not only installation of a lift

system but raising the roof and/or lowering the floor on the



vehicle. As outlined above, any time a vehicle is “cut” whether to

raise the roof or lower the floor the structural integrity of the

vehicle has been compromised and the basic functions of the

vehicle altered. Additionally, with a lowered floor the location and

structural protection around the gas tank is also affected. This can

create significant safety concerns. Thus, it is imperative to only

work with companies which are Quality Assurance Program

(QAP) certified. The company should also provide written

documentation that the vehicle has undergone a valid and full re-

crash testing process to define the crashworthiness of the modified

vehicle and confirm that it meets FMVS Standards whenever

possible.

• Client Access and Use: Access to the vehicle via the doorway and

selection of the lift is critical to meeting the client’s needs and

safety. The client’s size, weight, and height in the wheelchair must

be considered. Additionally, the size and weight of the wheelchair

must be considered. Many lift systems have specified weight

restrictions. The vehicle modifications can include a raised roof or

“popped top” for more internal “head space” within the vehicle

and/or raised doors for better vehicle ingress and egress. Taller

clients may require both modifications. In addition to the vehicle

modification selections, the client’s and/or family/caregiver’s

ability to properly operate the vehicle and lift system safely should

also be reviewed especially if used in a disabled driver’s

application.

• Community Access: Access to the community may be impeded due

to the size of the vehicle especially when a raised roof or lowered

floor is utilized. Parking may be an issue for raised tops.

Maneuverability in environments with high snow levels may be an

issue for lowered floors. Some family members may be

uncomfortable driving a full size van.

• Overall Cost: Full size conversion vans are often more costly to

obtain and maintain. The initial purchase cost will vary

significantly based upon the method of purchase as well as

location. There as three purchase methods for full size vans: (a)

purchasing a van from the original manufacturer (i.e. Ford) and

then adding a bolt on lift system, (b) purchasing from a secondary

mobility manufacturer via direct/internet sales model and (c)

purchasing from a secondary manufacturer via dealer network



sales models. The purchase method should be carefully reviewed

for both safety and cost effectiveness. Lastly, full size vans are not

fuel efficient. With fluctuating gas prices this can be a significant

factor for some clients.

• Appropriate Application: Typically the most appropriate

application for this type of vehicle is for larger clients who utilize

large wheelchairs and/or large families who wish to transport their

disabled family member as well as all other members of the family.

• Sample Product:

b. Add-On Products: Alternative “add-on mobility” options include products which

can be added to a variety of vehicles in addition to just vans. These may include

wheelchair/scooter hoist products (including lifts and platforms), specialty trailers

and trailer hitches, truck caps and wheelchair/scooter hoist systems, roof hoist

and storage products, etc. Careful evaluation of all of these options is often more

critical than with fully modified vehicle options.

• Vehicle Selection: With any of the above products the types, the

make and model of the vehicle must be reviewed. Not all vehicles

will accommodate the “add-on” product(s). Additionally, the

appropriateness of the vehicle itself must be considered given the

overall basic evaluation needs.

• “Conversion” Process: The safety and appropriateness of the

vehicle and the add-on mobility product as well as how the product

is added must be considered. For example: if a trailer and hitch

system is utilized will the vehicle safely pull a trailer and what is

the appropriate hitch for the vehicle? What impact will the trailer

have on the vehicle’s braking distance? Will the driver (i.e. an

elderly wife for a disabled senior husband) be able to safely back

the trailer?

• Client Access and Use: With many of these products it is very

difficult for the end user (whether it is a disabled consumer, family

member or care-provider) to safely use these products. Typically,

transfers in and out of wheelchairs/scooters are required, lifting or



specific placement of DME may be necessary, security of the

DME storage is an issue, etc. These products may pose safety,

access and proper utilization issues. Caution is advised when

recommending these types of products.

• Community Access: This may vary significantly depending upon

the products used and must be carefully analyzed.

• Overall Cost: Typically these are lower cost options. However, if

not applied properly it may result in increased cost to the consumer

in the long run.

• Appropriate Application: Much caution is advised when

recommending these types of products as it is this author’s

experience that very few individuals who experience a severe

physical disability can safely utilize them. If the disabled consumer

is high functioning in all aspects of the functioning evaluation

some of these products may be appropriate. When recommending

these products the overall safety, individual’s personal safety and

overall situation must be the primary considerations. Additionally,

the security and “wear and tear” issues of the wheelchair/scooter or

other DME must also be evaluated.

• Sample Products:

c. Vehicle Chair Turning Systems: There are a variety of vehicle chair turning

systems which allow access into a vehicle. These are primarily utilized in mini-

van type vehicles but may be appropriate for other vehicle applications. There are

pros/cons to these systems.

• Vehicle Selection: Not all vehicles will be appropriate for these

product applications. Thus, it is important to work with qualified

professionals and/or companies which may assist with determining

the appropriateness of the vehicle.

• “Conversion” Process: These systems typically utilize traditional

vehicle seats which are placed onto specialized mechanical

systems which allow access in and out of the vehicle. These

products should also meet FMVSS both in manufacturing as well

as in the installation process. Because these products do not require

any structural changes to the vehicle it is not necessary to re-crash



test the vehicle itself but it is important to understand the safety

ratings of the seat and adapted seating systems and components.

• Client Access and Use: Client access will vary as these products

can be installed in a wider variety of vehicles. When properly

implemented the product can be modified to meet specific needs.

The product customization must meet all safety standards and the

vendors concern regarding liability. Caution: these systems

typically require the disabled consumer to transfer from a

wheelchair into the adaptive seating system. Thus, it is critical to

evaluate the client’s function as well as the family/caregiver’s

abilities in this area. Safety can be easily compromised if a client is

not able to safely transfer. One major disadvantage of many of

these systems is the transfer must take place outside of the vehicle.

Thus, the client’s personal safety and living environment should

also be taken into account (i.e. weather, typical parking situation,

etc.). One advantage of these products is once the disabled

consumer is in the vehicle a traditional vehicle seating system is

used. This is a safer option over a wheelchair occupied seating

application. One company is in the process of creating a “best of

both worlds” product. A traditional vehicle seating system is used

with a portable base. The vehicle seat and base can be moved in

and out of the vehicle. This allows the disabled consumer to

transfer out of his/her wheelchair in a safer environment (i.e. in the

home using in-home transfer devices) and then use the vehicle

seating system while transporting in the vehicle. The consumer

would then have the option to use the vehicle transportation seat as

a temporary travel wheelchair or to bring their standard wheelchair

along and transfer back to the chair.

• Community Access: In the proper situations these products can be

beneficial as they can often be installed on a wider variety of

vehicles. However, careful evaluation of the product application is

required.

• Overall Cost: These options are typically more cost effective than

fully modified vehicles. However the cost of the adaptive product

as well as the overall cost of the underlying vehicle must be

considered. Additionally, as with any “add-on” mobility product if

not appropriately applied the long term cost may be significant.

• Appropriate Application: Carefully evaluation of the disabled

consumer’s personal safety and family situation must be



considered. These products will require transfers in and out of a

wheelchair. The client’s ability and/or the abilities of the

family/care providers to assist must be considered as well as the

environment in which the transfer must take place. At this point in

time these products are most appropriate for a higher functioning

disabled consumer.

• Sample Product:

2. Automatic Manufactured Conversions: Fully automatic manufactured adaptive

transportation options are the most complex. With these products a traditional vehicle

chassis (i.e. Dodge Grand Caravan) is completely de-constructed and then re-

constructed via a secondary manufacturing process. The challenge with these

products is not only to ensure the proper vehicle selection and equipment but to make

sure ongoing service and maintenance of the vehicles is established.

• Vehicle Selection: Not all vehicles may be appropriately modified

and there is typically a very specific process for obtaining these

vehicles. There are two competing sales methods for these

vehicles. One is via national direct sales companies (typically

internet based) and the other via a specified “dealer network”.

There are pros/cons to both methods of sales. Unfortunately the

disabled consumer is often “caught in the middle” in the conflict

between these competing sales methods. Typically the direct

sale/internet models will provide more cost effective pricing. Some

of the direct sales companies also have well developed

personalized ongoing service and maintenance programs. Others

do not. This is where the “conflict” typically arises. If a disabled

consumer purchases a modified vehicle from a direct sales model

that does not have a good service program it is often difficult for

them to obtain ongoing maintenance and service from a local

mobility dealer which sells product via a dealer network. Thus, it is

important to understand and evaluate how and where to obtain the

fully modified vehicle in order to meet the disabled consumer

needs. Once the method of obtaining the vehicle is determined

evaluating the specific vehicles overall safety, pros/cons,



dimensions, features, options, etc. and matching the appropriate

vehicle to the disabled consumer is required.

• “Conversion” Process: As outlined above these vehicles undergo

a separate and complete secondary manufacturing process. The

vehicle is re-engineered to incorporate the adapted components.

The original chassis is taken apart. The vehicle chassis “shell” is

then moved through the manufacturing plant where the floor is

removed and rebuilt, a ramp or lift system is installed, all new

electronics are developed, etc. The electronics will then be

coordinated to work with the “original equipment manufacturers”

(OEM) systems. For example: a keyless remote entry system

developed for the Dodge Grand Caravan is coordinated to not only

open the electric side passenger door but to deploy the ramp on the

adapted vehicle. The vehicle is then completely reconstructed with

many of the original vehicle components remaining in place and

fully operational. The final product looks very similar to the

original chassis but now includes fully integrated adaptive

equipment. To ensure safety these vehicles must undergo a second

process for crash testing and meet the FMVSS. There are several

national “secondary manufacturers” which specialize in these

types of “conversion products”. Research and due diligence on

these companies should also be completed prior to making

recommendations.

• Client Access and Use: There are several automatic conversions

available on the market today. The majority of these conversions

are completed on mini vans and full size vans. Fully understanding

the disabled consumers needs and situations plays a critical role in

proper selection of these vehicles. There are some variances in the

door entry heights and widths, ramp widths, ramp weight

restrictions, interior space, features, electronic components, etc.

Thus the Trustee must also understand and analyze the specifics of

the vehicle products and/or work with qualified individuals to

assist in this area. The majority (if not all) of the automatic

conversion options are side entry vehicles. Meaning access into

and out of the vehicle occurs via a sliding passenger side door vs.

the rear of the vehicle.

• Community Access: Community access with these products is

typically easier especially if a mini-van conversion it utilized. The

mini-van options are easier to maneuver and park. However,



caution should be used to carefully evaluate the client’s

environment as these conversions typically involve lower floors

with ramp “kneeling systems”. In rural communities with roads

which are not well maintained or in high snow level environments

this may be problematic. Additionally, review of the side-entry

into the vehicle should be accessed in relation to community

specifics for the client.

• Overall Cost: Costs for these vehicles vary significantly

depending upon the purchase method and the clients’ location. As

mentioned above the direct sale/internet sale models are much

more cost effective. The primary reason for this is there is typically

not a “dealer network” involved. Pricing within the “dealer

network” framework will vary from dealer to dealer and via the

disabled consumer’s location. The manner in which these “dealer

networks” are established are very competitive with the

manufacturers often limiting or not allowing “out of area sales”.

This artificially “fixes” pricing. Unfortunately, this does not

always bode well for the disabled consumer. The consumer cannot

assume the local mobility dealer has entered this area of business

out of good will toward the disabled consumer. The price mark-ups

are often steep and profitability in the industry in general is

typically high. The competitive sales environment can also create

problems when obtaining needed service and maintenance. While

the manufacturers of these vehicles are required by law to service

the vehicle during the warranty period, many local mobility dealers

may refuse or charge higher rates to service the vehicle. Thus,

careful review of the cost and how ongoing service will be

provided is necessary.

• Appropriate Application: There are many appropriate

applications for these adaptive transportation options. These are

generally the safest overall options available. The key is working

to ensure a “proper fit” and appropriate vehicle option for the

individual who experiences a disability and/or their family.

• Sample Product:



3. Manual Conversions: Manual conversions can involve a complete secondary

manufacturing process (as outlined above) or special installation of integrated manual

rear-entry ramp systems. With the latter option the original vehicle chassis is not de-

constructed and re-constructed so the original integrity of the vehicle chassis remains

intact.

• Vehicle Selection: Not all vehicles can be properly modified to

accommodate manual ramp systems. As with the automatic

manufactured conversions there are direct/internet and dealer

network sales models. There are also a variety of vehicles options

available including rear-entry options where the individual who

experiences the disability accesses the vehicle from the rear vs. a

side door. As with any of the above options; careful review of the

specific vehicles overall safety, pros/cons, dimensions, features,

options, etc. and matching the appropriate vehicle to the disabled

consumer is required.

• “Conversion” Process: These products may undergo a full

secondary manufacturing process as outlined above or may only

have a specialized integrated rear ramp system installed. With

either of these processes the vehicle must still meet basic safety

standards.

• Client Access and Use: As with the automatic conversions there

are a variety of manual adaptive vehicles available. Fully

understanding the disabled consumers needs and situations plays a

critical role in proper selection of these vehicles. There are some

variances in the door entry heights and widths, ramp widths,

interior space, features, and ingress/egress to the vehicle, etc.

When evaluating the use of a side entry vs. a rear entry access it is

important to evaluate personal safety concerns when in the

community (i.e. a rear entry vehicle requires the client to access

the vehicle from the rear, when in a busy parking lot ingress/egress

into the vehicle in this manner may be a safety concern).

Additionally, where the disabled individual is located within the

vehicle when a rear entry is utilized must also be considered. A

bench seat may be placed between the front driver/passenger seats

and where the wheelchair sits in the rear of the vehicle. This may

make communication and caregiver access more difficult. The

Trustee must understand and analyze the specifics of the vehicle



products and their applications to meet a specific clients needs

and/or work with qualified individuals to assist in this area.

• Community Access: The most typical application of the manual

conversion options are for mini-vans or smaller vehicles. Thus, the

vehicles are easier to drive and park. However, as mentioned above

ingress/egress from the vehicle must be carefully considered

especially when a rear-entry conversion is utilized.

• Overall Cost: As with automatic conversions pricing can vary

significantly if purchased on a direct/internet basis vs. dealer

network basis. When utilizing dealer networks pricing will vary

from location to location. As with the automatic conversions this

pricing model does not always bode well for the disabled

consumer. Manual conversions are often more cost effective to

both purchase and maintain than automatic conversion because

there are fewer electronic components. With the use in mini-vans

or smaller vehicles gas mileage is also better thus saving on fuel

costs.

• Appropriate Application: There are a wide variety of applications

for manual conversions. The appropriate solution will be based

upon the evaluation of the client’s needs, situation and desires.

Manual rear conversions can be a good solution for overall cost

savings and for individuals living in rural areas where obtaining

service on the adaptive components may be difficult.

• Sample Product:

4. Products to Avoid: From an overall safety perspective there are certain accessible

vehicle modifications which should be avoided. These include:

• Vehicles which have been structurally modified and not re-crash tested to

meet NMEDA QAP and FMVSS.

• Exterior “bolt on” or portable ramp systems which do not meet ADA

standards and create safety hazards with inappropriate ramp grades/angles

and storage concerns.

• Add on lift systems which are not appropriately matched to the vehicle.



• Exterior lift/storage units which cause personal safety concerns and/or will

cause damage to the wheelchair and/or scooter.

• Any product, modification or adjustment which does not meet QAP,

FMVSSs and other safety standards established in the industry.

• Sample Products: These types of products should be avoided!

Funding/Financing Options: As noted above the cost for adaptive vehicle equipment will vary

significantly. Add-on types of vehicle products are typically the most cost effective but it is

critical to ensure the proper vehicle selection and overall client “fit”. Often a recommendation

will be provided for an add-on type product in an effort to reduce costs. This may be absolutely

appropriate in some cases but if the recommendation is not appropriate it will cost the disabled

consumer more in the long term. Fully modified vehicle costs have the largest variation in cost

and can range from $29,000 (for slightly used vehicles) to as high as $95,000. This significant

cost range is due to the vehicle type, method of sale, and the client’s location. Thus, the Trustee

should carefully research the methods of purchase and location as it relates to both cost and

ongoing service and maintenance needs. Active client advocacy is often critical in negotiation of

“fair and appropriate” pricing for both purchases and service needs. The Trustee must also be

cautious that the recommendations provided are not only appropriate to meet today’s needs and

situation but will be valid for at least a 5 to 7 year period and will not require premature sale of

the adaptive equipment and/or vehicle. Premature sales of these types of vehicles and equipments

may be extremely costly to the disabled consumer thus should be avoided if at all possible.

The Trustee should also be aware of specialized funding sources available to the disabled

consumer these include the following:

Public Funding Sources:

• Veterans’ Administration (VA) program. The VA may offer assistance to

qualifying veterans. This assistance typically only includes the modifications to

the vehicle but assistance with a fully modified vehicle may also apply. Please

see: www.va.gov.

• Department of Vocational Rehabilitation (DVR). DVR programs and assistance

varies from State to State. Typically, only the vehicle adaptive equipment



modifications are funded via DVR programs. Each State will have a specific

website for DVR services.

• Social Security Plan for Achieving Self-Support (PASS). Individuals receiving

social security benefits may apply for a PASS plan which permits them to set up a

savings program using a portion of their social security benefits. These savings

are then used to purchase accessible vehicle adaptations and/or fully modified

vehicles. See: www.socialsecurity.gov/disabilityresearch/wi/pass.htm

• Community Programs. Some states have local community programs which may

provide some assistance. These are typically non-profit agencies which serve

individuals who experience disability and/or churches. Some communities will

also provide fund raising efforts for individuals who experience disability to

obtain accessible vehicles.

Private Funding Sources:

• Manufacturers’ “disability rebate” programs. The majority of auto manufacturers’

offer a $1000 rebate for the accessible components and some offer $200 for

alerting devices on new vehicles. Look to each of the manufacturers’ websites:

(i.e. www.automobility.daimlerchysler.com; www.fordmobilitymotoring.com)

• Some states will also provide sales tax exemptions or reductions for the value of

the accessible components added to a vehicle. Look to the county Department of

Motor Vehicle Divisions for this information.

• If the disabled consumer’s injury is “work related” many worker’s compensation

carriers will provide funding for adaptive vehicle equipment and or fully adapted

vehicles. Contact the specific worker’s compensation claims adjuster or medical

catastrophic claims unit.

• There are some specialized financing options available via local mobility dealers

which can provide financing based upon a 10 year term vs. shorter more

expensive terms. Longer term financing will typically reduce the monthly

payment. However, caution should be used with these funding options as the

disabled consumer may become “upside down” in the financing structure whereby

the amount owed is much higher than the vehicle value. Additionally, these types

of finance terms will often require the disabled consumer to “hold” the vehicle

longer than is typically recommended and may increase overall maintenance costs

as the vehicle ages. These programs are typically available via the direct/internet

or local mobility dealer networks.

• Traditional leasing models. There are some traditional leasing models which also

assist in lowering the monthly cost of the vehicle. However, these programs

should be carefully evaluated as there are pros/cons to these funding methods.

These may be available via traditional vehicle leasing programs or programs



specialized for adaptive transportation. Contact the direct/internet and/or local

mobility dealers.

• All inclusive funding models. One company specializing in accessible vehicle

programs for Special Needs Trust administrators and Worker’s Compensation

carriers has developed a unique program. This program offers assistance in

personal and vehicle evaluations, provides personal delivery, coordination of

local service, vehicle funding via leased options, full maintenance program,

bumper to bumper extended warranty, 24/7 road side assistance and a specialized

national insurance program. The all inclusive program is offered on a national

basis. For more information see: www.mobilitysupportsystems.com.

Case Studies 2, 3 and 4-Title Issues and Concerns:

Case Study 2: Sam and Loretta have a 10 year old child, Joe, who sustained a severe

traumatic brain injury in an automobile accident. Shortly after the accident Sam and Loretta

divorce. Loretta has primary custody of Joe. A personal injury action is settled and a Special

Needs Trust is established for Joe. One of the first requests Loretta has for the new Trustee is a

vehicle. She tells the trustee she will not drive an accessible van because she will not have her

child “labeled” as disabled. The Trustee purchases a $70,000 Escalade. It has no accessible lift or

ramp. Loretta lifts Joe in and out of the passenger car seat and puts his wheelchair in the back of

the vehicle. The vehicle is titled in the Trust’s name to protect it as an asset of the trust. Two

months later Loretta is arrested and charged with dealing drugs out of the back of the Escalade

purchased by the trust. The vehicle is confiscated by the police and is impounded. The Trustee is

notified by Sam who was not aware of the purchase of the vehicle and who is extremely upset

and demands the Trustee recover the vehicle, sell it and obtain an appropriate vehicle for Joe.

Case Study 3: John is a 13 year old boy who has a severe spinal cord injury due to a

swimming pool accident. His recovery is placed into a Special Needs Trust for his benefit. His

parents are his primary care providers. A year after the trust is funded the trustee purchase a fully

accessible vehicle for John. The trustee is concerned with title and potential liability issues thus

titles the vehicle in John’s parents name. A year later the parents have significant financial

problems and sell the vehicle without providing notice to the trustee. They pay off some of their

personal bills and ask the Trustee to purchase a new vehicle for John. When the Trustee refuses

to purchase a second vehicle they purchase a less expensive non-accessible vehicle for the John

and the family. The vehicle is inappropriate for meeting John’s needs and raises several safety

concerns.

Case Study 4: Susan is a single 45 year old woman who sustains a severe spinal cord and

brain injury as a result of a medical malpractice incident. The recovery from her settlement is

placed into a Special Needs Trust on her behalf. She is receiving SSDI, SSI, Medicaid and



Medicare. Her sister is her primary care provider. Approximately two years after the trust is

funded the Trustee purchases a new accessible vehicle for Susan’s benefit. Due to his concern

with the title issues and potential trust liability he titles the vehicle in the sister’s name. Upon an

annual review by Medicaid it is discovered the vehicle was purchased for Susan but legal title

was placed in Susan sister’s name. Medicaid deems the transaction as an “illegal transfer of

assets” and disqualifies Susan for Medicaid and the Medicaid Home and Community Based

Waiver program she is receiving. The State seeks to disqualify the Special Needs Trust due to

the improper disbursement of funds and “illegal transfer” and requests full reimbursement of the

Medicaid lien.

Each of these case studies demonstrates three very different and significant problems

when purchasing a vehicle within a Special Needs Trust context. The typical standard of care for

the Special Needs Trust administer is to purchase a vehicle and hold title as follows: the Trust is

named as the “legal owner and/or lien holder” and the trust beneficiary and/or family member is

named as the “registered owner”. This protects the vehicle as an asset of the trust and allows the

trust beneficiary and/or family member to obtain insurance on the vehicle. Unfortunately, as

demonstrated above this is not the perfect solution as problems can arise. Thus, the Trustee must

carefully evaluate not only the safety and appropriateness of the vehicle but how the title will be

held to best protect the asset, trust, trust beneficiary and trustee. Ideally, the trust should not hold

title to the vehicle even in the fictitious position of lien holder. Unfortunately, the trustee and

trust do not have the same liability protections a traditional bank lien holder has under this type

of vehicle purchase scenario. In fact there is no legal lien. Holding a protected interest in the

vehicle by registering the trust’s interest on the Title exposes the Trust to a potential claim for

vicarious liability—see below. This leaves the Trustee with two potential options; (a) disburse

the asset to the trust beneficiary and hold the title in his/her name or in a family member’s name.

However, as outlined above; extreme caution should be utilized to avoid loss of the vehicle

and/or public benefits or (b) obtain a vehicle via a lease program whereby the asset is protected,

the trust holds no title or interest in the vehicle, and insurance will be fully maintained.

Case Study 5-Accessment of Driver, Insurance, Liability Issues:

A fully accessible vehicle is purchased from Debra’s Special Needs Trust. She is a 34 year old

who experiences a spinal cord and brain injury. Debra is one of the driver’s of the vehicle. The

trustee purchases the vehicle without obtaining a full driver’s evaluation for Debra. Debra has

not driven since her accident three years ago but still has a valid driver’s license. The Trustee

titles the vehicle with the trust as the “legal owner/lien holder” and Debra as the “registered

owner”. Shortly after obtaining the vehicle registration and insurance Debra’s driver’s license

expires. She is no longer a legal and valid driver under the vehicle insurance policy. She does not

notify anyone of this issue as she is fearful she will no longer be able to drive because she will

not pass the driver’s tests required to renew her license. She then is in an accident with the



vehicle. Fortunately, no one is seriously injured but she is at fault. The Trust now must pay for

the repairs to the other party’s vehicle as well as Debra’s vehicle and determine how to address

Debra’s invalid driver’s license and lack of insurance. Debra’s family refuses to be named as the

registered owners or obtain insurance as they fear their own liability if Debra continues to drive

the vehicle.

Debra’s situation not only illustrates the importance of a basic evaluation for safety but issues

related to insurance and liability.

In all situations involving the purchase and/or lease of an accessible vehicle for a trust

beneficiary it is essential to obtain a basic assessment/evaluation to ensure adequate safety and

proper vehicle selection. However, in the case of a trust beneficiary driver it is IMPERATIVE to

ensure the safety of the trust beneficiary as well as the general public by obtaining a professional

evaluation of the trust beneficiary’s abilities and capabilities for safe driving. A brief discussion

of the areas which must be considered is outlined below.

Basic Assessment and Evaluations:

The first consideration for all accessible transportation recommendations is to make

every effort to ensure the safety of the individual who experience’s a disability. Personal safety

considerations include:

• Review and Assessment of Medical History: What are the individual’s diagnosis(s)

and prognosis(s)? Is there a history of seizures or other medical conditions which may

create hazards when transporting in a vehicle? What medications are involved and

would any of these impair or cause issues with transportation? Will state law preclude

someone with a history of seizures from operating a motor vehicle? If so for how

long?

• Overall Functional Assessment: What are the clients’ overall functioning abilities and

limitations? The evaluation should include review of the following areas: mobility,

communication, visual, hearing, cognitive, physical, driving history (if any), etc. The

desires and expectations of the individual who experiences a disability must also be

reviewed. Are the goals/expectations realistic? What vehicle options such as music

systems, air conditioning /heating, extra batteries, etc. configurations will be needed

for the disabled individual’s personal comfort? The goal of the assessment is to

review the clients’ overall abilities, limitations and use for private adaptive

transportation.

• The Individual’s Mobility Abilities: Unfortunately, many “common sense” questions

are not asked when recommending a specific adaptive vehicle or product.

Understanding these issues is crucial in providing an appropriate recommendation. Is

the client able to walk without assistance or are there limitations? If so, what are



they? Does the client use a wheelchair as his/her primary means of mobility? Is the

wheelchair a manual or power chair? What is the client’s ability to safely transfer in

an out of a wheelchair and/ or vehicle seat? Is the client mobile enough to enter and

exit the vehicle safely as well as secure a wheelchair if utilized?

• Specialized Adaptive Driving Situations: If an individual who experiences a disability

will be a driver it is CRUCIAL to obtain and complete a professional evaluation and

assessment by a Driver’s Rehabilitation Specialist (DRS). A DRS is a professional

who “plans, develops, coordinates and implements driving services for individuals

with disabilities” (see www.aded.net). The DRS evaluation should include a full

assessment of the individual’s medical history, functional assessment to include

instrumental activities of daily living (ADL’s) , specific recommendations to all

adaptive equipment including vehicles (fully modified, partially modified, etc.)

wheelchair and personal restraint systems, specified driver controls (i.e. hand/foot

controls), etc. Additionally, a complete driver’s evaluation and training provided by a

Certified Driver’s Rehabilitation Specialist (CDRS) must also be completed.

• Evaluation of Disabled Consumer’s Equipment: As outlined above, if a disabled

consumer is utilizing wheelchairs or other DME devices for mobility these items must

be considered. Is the use of the mobility device permanent or based upon a specified

timeline? Will the wheelchair be occupied or unoccupied while transporting in the

vehicle? What is the type, make and model of the wheelchair? If it will be used as a

seat for transportation does it comply with WC-19 standards? What types of

wheelchair and personal restraint systems are available for that particular wheelchair?

Proper measurements of the occupied wheelchair and overall weight must also be

taken into consideration. This is important to determine the appropriate fully adapted

or partially adapted vehicle selection(s), ramp/lift systems, positioning of the

wheelchair within the vehicle if a fully modified vehicle is selected and/or wheelchair

storage options. Use and review of a DME/Vehicle matrix may be helpful (i.e. new

wheelchair/new van; old wheelchair/new van; new wheelchair/old van; old

wheelchair/old van).

• Assessment of the Overall Client and Family Situation: In addition to fully evaluating

the medical and functional aspects of the disabled consumer it is also imperative to

fully understand his/her overall circumstances and family situation. Will the

consumer be operating the vehicle independently all, some or none of the time?

Where does the consumer live? Will adverse weather conditions be an issue? Will

home or community parking be problematic? Will a garage or covered parking be

utilized? If a care provider is required, will there be one primary care provider or a

variety of providers? What is the care provider(s) qualifications/training (if any)?

Will the care providers be drivers of the vehicle? If so, what are their driving

history/records? If family members are involved, what are their ages? Will they be



involved in providing care? Do they have any medical conditions which may limit

their ability to assist their disabled family member or be safe drivers? Will they be

drivers of the vehicle? If so, what is their driving history/record? How many family

members/care providers will be traveling on a regular basis with the individual who

experiences a disability? What is the family member(s)’ expectations? Are the

expectations realistic? Do they consider and meet the desires and needs of the

individual who experiences a disability? Are they knowledgeable about basic

transportation safety issues? Will they comply with safety requirements?

• Evaluation and Understanding of Accessible Transportation Options: In order to

provide appropriate adaptive vehicle recommendations an understanding all of the

above issues and how they apply to specific vehicle recommendations is essential. It

is also important to understand the basic elements of an overall vehicle assessment.

The components of the evaluation should include: overall safety of the vehicle as

outlined under general safety concerns above, clients ability to enter and exit the

vehicle, client positioning within the vehicle, (i.e. how will the disabled consumers

location in the vehicle effect communication and care needs?), wheelchair restraint

options and the relation to the vehicle/wheelchair, whether the client will be a driver

or only a passenger, wheelchair dimensions and weight, client occupied wheelchair

measurements and weight, pros/cons of manual or fully automatic adaptive

conversion and products, pros/cons of rear-entry vs. side entry fully modified

vehicles, pros/cons and safety considerations for raised roofs, lowered floors, partially

lowered floors, “bolt on” lift products/systems, etc.

The goal of this material is to provide a basic understanding of the areas which must be

considered and evaluated when recommending adaptive transportation options. Whenever

feasible a full evaluation and assessment should be obtained by a qualified rehabilitation

professional or other knowledgeable professionals.

To obtain referrals to qualified transportation and driving evaluation specialist the

Association for Driver’s Rehabilitation Specialists (ADED) should be considered. ADED is a

professional non-profit organization established to support rehabilitation consultants with a

specialty in driver’s evaluation and training. The ADED has created “best practices” standards,

training and compliance for these specialists. Please see: www.aded.net. Another resource to

obtain qualified professionals to assist with adaptive transportation evaluations is the American

Occupational Therapy Association, Inc (AOTA), please see: www.aota.org.

Insurance Concerns:

Obtaining and maintaining adequate and proper insurance for the vehicle is essential to

the trust, trustee and trust beneficiary. The Trustee at a minimum should obtain State mandated



auto insurance limits. These are typically $100,000/$300,000/$100,000. We recommend the

Trustee pay the insurance bills directly to ensure insurance is maintained and ask for a copy of

valid driver’s licenses and Department of Motor Vehicle records of the primary vehicle drivers

on a regular basis (at least quarterly). The Trustee should also be aware of the limits provided by

most insurance policies. Some insurance carriers will not insure the accessible components of the

vehicle. Any damages above the insurance policy limits will be the responsibility of the primary

driver and/or trust. Thus, whenever possible higher insurance limits should be sought. If a

significant accident were to occur the trust could be potentially liable for significant damages

above and beyond the auto insurance policy. If the Trustee cannot find adequate insurance they

may seek the assistance of the all inclusive mobility company outlined above. For more

information see: www.mobilitysupportsystems.com.

Potential Liability Concerns:

Standard of Care: Trustees who manage special needs Trusts typically advertise that they have

special expertise and experience in dealing with situations that arise regarding management and

implementation of those trusts. It is a basic tenant of Trust law that a Trustee that holds itself out

to have special experience or ability will be held to a higher standard of care than a Trustee who

does not present itself as having that experience or expertise.

Frequency/Exposure: We know from the experience of having drafted well over 5,000 of these

trusts over the last 30 years that one of the most common requests for disbursement from a

Special Needs Trust will be for accessible transportation for the trust beneficiary. The

“experienced” Special Needs Trustee cannot duck this issue. They will have exposure for injury

and consequent damages caused to the Trust beneficiary, involved family members and third

parties whether within or without the vehicle when that vehicle is selected and/or paid for by that

Trustee.

Areas of potential liability:

The SNT Trustee provides funding for the purchase of an inappropriate vehicle for Sally

and Kyle. Either one of them is injured because Kyle goes into seizure during an inappropriate

transfer required because of improper vehicle selection. There are no effective wheelchair tie

downs in the vehicle, the chair breaks loose and injures a sibling. Kyle has to be left in a typical

car seat and is injured in a minor collision. The Trustee made no effort to determine the

beneficiary’s actual needs and did nothing to ensure that the vehicle or equipment selected was

safe. The Trustee paid for the wrong vehicle. Any exposure there?

A SNT Trustee buys an expensive vehicle without doing any due diligence on the type of

vehicle required. The Trustee simply acquiesces to the demands of a family member. The



Trustee is unaware of or simply ignores the actual needs of the Trust beneficiary. There is no due

diligence regarding the person (Loretta) with whom the vehicle is to be placed. The vehicle is

consequently impounded. Any exposure there?

The vehicle purchased to provide John with transportation is sold by his parents because

the Trustee did nothing to secure use of the vehicle for John. The Trustee “trusted” the family

members to protect John interests. The Vehicle is now gone and to “punish” the family members

the Trustee refuses to provide another one—thereby abrogating his duties to meet John’s needs.

Does this breach the Trustees duty to provide appropriate services to John?

Susan’s benefits are jeopardized because the Trustee did not know enough about the state

and federal benefit program rules that govern trust disbursements. In this case, in order to avoid

concerns about vicarious liability for accidents caused by the van, the Trustee puts the tile to the

van in the name of another; By most definitions that is a gift and as a result, an uncompensated

transfer. Is this not also breach of the trustee duty to the beneficiary?

Had Debra’s accident resulted in significant personal injuries or property damage the

trust would potentially be liable for all of the damages. The Trustee did not obtain a complete

evaluation of her ability to drive, did not confirm her driver’s license and did not confirm that

insurance was still applicable for her. As a result, the Trustee could also be potentially liable--

not only for payment of Debra’s injuries but also those experienced by third parties.

We know the Trustee has a fiduciary obligation to the Trust beneficiary. The Trustee has

an increased standard of care as a result of its stated expertise in Special Needs Trust

management. The Trustee pays for the wrong vehicle, allows the selection of a vehicle that is

unsafe for the beneficiary, pays for the installation of the wrong equipment or places it in the

hands of the wrong agent. If injuries to the disabled beneficiary result, the claim by the

beneficiary against the Trustee is clear and persuasive.

Injuries to third persons are just as foreseeable. A reading of the materials published over

the last several years by the American Academy for Justice (formerly the American Trial

Lawyers Association) will reveal an ever expanding emphasis on vicarious liability. Vicarious

liability is grounded in the tort concept of respondeat superior. The Trustee purchases and places

a potentially dangerous instrumentality with an agent—the driver of the vehicle. Once again the

vehicle may have been improperly selected and equipped. A wheelchair that is unsecured in the

vehicle because improper or no tie downs were purchased strikes another passenger and injures

her. The Trustee has provided the equipment—the instrumentality of the injury. Does the Trustee

as the “master” in this unrecognized agency relationship not have a duty to provide safe

equipment? How far does the duty to third parties extend? Is the standard the foreseeable injury?

Of course one question is whether the liability will only extend to the Trust—or will the liability



extend to the Trustee personally—to be satisfied by the assets of the Trustee and not the assets of

the Trust? I suspect a thoughtful court will lean to the latter.

We don’t know all of the answers to these questions yet, but the application of traditional

tort law principals clearly places the Trustee in a disadvantaged position. Competent personal

injury trial lawyers—those same folks who obtained the funds for the Trust in the first place will

have persuasive arguments to use in these situations. The questions will be resolved in the next

few years as the accident situations continue to occur and the courts will be called upon to define

what the extent of the fiduciary duty will be.

Other Vehicle Concerns:

1. Funding: As noted above accessible vehicles can be expensive. Often a Special Needs

Trust is funded with cash and structured annuity payments. If the Trust is “over

structured” with monthly annuity payments and has limited cash in the trust it is often

difficult to meet all of the trust beneficiary’s needs. Large capital expenditures such as

the purchase of a vehicle can be difficult to balance against other needs. Thus, one

potential solution is to obtain the vehicle via an all inclusive lease program. This allows

the Trustee to provide a safe and appropriate vehicle and all of the related vehicle

expenditures to the trust beneficiary cost effectively and reduces the need to utilize trust

capital to purchase a depreciating asset.

2. Ongoing Maintenance: Once the vehicle is purchased another potential “nightmare” for

the Trustee is obtaining cost effective and appropriate maintenance services. Often when

the local service provider hears the word “trust” they automatically charge more for

maintenance services. Additionally, the Trustee, trust beneficiary and/or family members

typically do not have expertise in vehicle maintenance issues thus are not aware of what

repairs or maintenance are appropriate. Good advocacy is required to obtain cost

effective vehicle services. One solution to help manage these costs it to utilize an all

inclusive program with national maintenance contracts. An alternate solution may be to

hire a trusted certified technician to assist the trust beneficiary and/or family with these

issues.

3. Vehicle Disposal Issues: One other area of concern for the trustee is vehicle disposal

issues. Typically an accessible vehicle should be replaced every 5 to 7 years. If the

Trustee purchases the vehicle outright it is now the Trustee’s responsibility to not only

sell the existing vehicle but to obtain a new appropriate vehicle for the trust beneficiary.

Additionally, at the trust beneficiary’s death the Trustee is left with the duty to sell the

asset to either satisfy the Medicaid lien and/or to distribute the remaining funds to

remainder beneficiaries. Typically, the Trustee will not have the expertise on valuation or



where to sell used vehicles. Again, this is where an all inclusive lease program can be

helpful.

Conclusion: Safety is the paramount consideration when providing recommendations for

accessible transportation options. In order to accomplish maximum safety careful evaluation and

knowledge of general and personal safety, wheelchair and wheelchair restraint systems, adaptive

vehicle add-on products and fully manufactured accessible vehicles is required. Selecting

adaptive vehicle option(s) which will meet the disabled consumers needs, situation and desires is

also necessary. The recommended option(s) provided should anticipate a 5-7 year replacement

timeframe to avoid premature sale. Once the appropriate options have been selected careful

review of how the equipment is purchased and how ongoing service and maintenance needs will

be met is critical. Often good client advocacy is required to properly negotiate initial equipment

costs and obtain ongoing effective and cost efficient service/maintenance. The Trustee must also

carefully determine the most appropriate manner to acquire the vehicle and address title, liability

and insurance issues. The Trustee’s role in obtaining appropriate transportation options will

have a significant impact on the quality of life for individuals who experience disability and/or

their family and their ability to safely and appropriately access the community.

As outlined in the above case studies, obtaining safe and appropriate accessible vehicle solutions

for a trust beneficiary can be complicated and requires knowledge and expertise in this area.

There are many “pitfalls” with vehicle purchases which must be carefully navigated by the

Trustee in order to avoid potentially liability not only for the trust and trust beneficiary but for

the Trustee as well. Careful due diligence is required in the following areas:

• General Evaluation of the Trust Beneficiary’s Situation

• Safe and Appropriate Vehicle Selection

• Price Negotiation and Funding Options

• Title Considerations

• Potential Liability Mitigation

• Insurance

• Ongoing Maintenance

• Vehicle Disposal



If the Trustee does not have adequate knowledge and experience in this area, obtaining a

consultant to assist in this area and/or working with companies with expertise in accessible

vehicle purchase is the best solution.

For More Information Please Contact:

Kate Dussault

Mobility Support Systems, LLC

[email protected]. (206) 860-0677

Toll Free: (888) 860-0677

www.mobilitysupportsystems.com.

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