From the February 2012 issue of Benefits Selling Magazine •Subscribe!

What is a fiduciary (and why should we care)?

What better topic for the month of Valentine’s Day than that of fiduciary duty? As those once and forever smitten by the arrow of cupid can attest, love means, among other things, putting the interests of another above those of your own. This same moral ethic defines the fiduciary duty.

Of course, it wasn’t always that way. One of the key elements of trust law—from which we derive our definition of fiduciary duty— comes from two provisions of the Magna Carta. When he signed the Magna Carta in 1215, King John agreed estates would be managed only for the benefit of the beneficiaries. This eliminated both outright theft as well as the more sneaky kind of theft known as “self-dealing” transactions.

The definition of fiduciary duty has been finely tuned in the last eight centuries. Since 1940, with an acceleration beginning around 1970, one of the most important fiduciary duties—that of providing investment advice—has shifted from stodgy bank trust departments to “go-go” investment advisers registered with the Securities and Exchange Commission. The Investment Advisers Act of 1940 requires all registered investment advisers to act with the same fiduciary duty as a trustee, even though they are not named as trustees.

Over the last generation, other financial service providers discovered how much more lucrative the investment advisery business was compared to their brokerage or insurance businesses. They began calling themselves “advisors” (notice the “or” ending, as only as SEC registered investment advisers can use the “er” ending).

The distinction goes far beyond the need to irritate English teachers across the nation. Advisers, as fiduciaries, have a legal mandate to place client interests first. Advisors, on the other hand, must only provide “suitable” investments to clients while placing their firm’s interests first. This means a lot of those “self-dealing” types of transactions. Remember, self-dealing transactions are so illegal for trustees, not even disclosure can surmount their prohibition. For a non-fiduciary, however, not only are self-dealing transactions allowed, their inherent conflict of interest often does not have to be disclosed.

In the retail investment market, caveat emptor rules. The same cannot be said of the retirement plan market. This distinction can significantly impact the fiduciary liability of plan sponsors. A 2010 academic study suggests legal self-dealing transactions can actually harm investors. If a plan sponsor fails to hire a fiduciary to provide investment advice, the liability insinuated by this study accrues solely to the plan sponsor who is, by definition, a fiduciary. Even if the plan sponsor hires a fiduciary, the nature of the relationship may or may not limit the liability of the plan sponsor.

There are two types of fiduciary relationships. A non-discretionary (ERISA 3(21)(a)) adviser only makes recommendations and the plan sponsor must make the actual investment decision. In this relationship, the plan sponsor retains nearly all the fiduciary liability. On the other hand, a discretionary (ERISA 3(38)) adviser makes investment decisions and, given the Uniform Prudent Investor Act, assumes most of the fiduciary liability from the plan sponsor.

And you thought love was complicated.

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