Filbrandt Reports

Ruling Compels Advisers to Protect Your Best Interests

Volume 17, Issue 1



Executive Summary:

  • The Department of Labor has ruled that all financial advisers giving retirement plan advice must operate as fiduciaries for their clients.
  • The fiduciary standard of care requires that a financial adviser act solely in the client’s best interest when offering personalized financial advice. 
  • The clients’ interests are held above all others, including the financial adviser’s. We operate under this standard. Many professors are not aware that their advisers may not be operating under the fiduciary standard.
  • This report includes a sample Fiduciary Agreement which you can present to any adviser. It is a way to determine whether he or she is operating under the fiduciary standard.

Ruling Compels Advisers to Protect Your Best Interests

It was more than 20 years ago when I first learned what a fiduciary adviser is. That very valuable perspective came from one of our own clients, to whom I am forever grateful. Let me tell you the story.

Frank and his wife Evelyn were clients we helped for over four years with financial, estate and retirement planning advice. One day Frank asked me if we could “manage” his retirement assets that were in a university on the east coast, where he was previously employed.

I told Frank that we did not provide asset management services, but he insisted that I review his accounts and help him out. When I came back to him with a proposal to “roll” his assets out of his university retirement plan and into my favorite mutual funds (that paid me a healthy commission), he said absolutely not.

Frank insisted again that I learn all about his university-based assets (mostly TIAA-CREF accounts), and help him make choices within those accounts. He would have nothing to do with investments that were outside of his university retirement plan. He felt very comfortable with the number and quality of the investment choices his retirement plan provided, and saw no good reason to move his assets out. Furthermore, he said he would pay our firm directly for our advice, so there was no need for us to be paid commissions.

So the deal was struck, resulting in me serving Frank and Evelyn as a “fiduciary adviser,” someone who is required to put the clients’ interests above all others, including his or her own. 

It has been my experience that most people do not know what a fiduciary adviser is. Nor do they realize that not all financial advisers are bound to that standard. Until just recently, it was legal for advisers to put their clients’ assets into investments that generated high commissions for the adviser – whether or not that investment was actually the best one for the client’s financial needs and objectives.

That changed on April 6, 2016. The U.S. Department of Labor issued a ruling which states that all retirement financial advisers must operate as fiduciaries for their clients. This means that advisers must put the client's interests above all others, including their own.

The rule is in response to a statement made by President Obama in April 2015: “Today, I'm calling upon the Department of Labor to update the rules and requirements that retirement advisers put the best interests of their clients above their own financial interests. It's a very simple principle: You want to give financial advice, you've got toyour    client’s interests first.”

Seven years ago, we issued a report on this subject that alerted university professionals to this situation. You can view it here: http://bit.ly/us-senate-drops-the-ball. We’re revisiting this important topic now because so few people are aware that their financial assets may be under the management of someone who does not put the client’s needs above all others.

Ruling Compels Advisers to Protect Your Best Interests

Importance of Fiduciaries

Many advisers are working under what is known as the “suitability standard.” It requires only that investments must meet the client’s investing objectives, time horizon and experience. It does not require that the adviser put the client’s interests above his or her own. So in this scenario, it is perfectly fine for the adviser to put the client into an investment that costs more and pays higher commissions to the adviser – even if there is a comparable one that costs the client less.

The fiduciary standard is much higher than the suitability standard. By legal definition, the fiduciary standard requires the adviser to represent the client’s interests above all others. This means that as the client’s “fiduciary,” the adviser must deem the investment selection not only suitable, but also of the highest quality and lowest cost based on what is available from all sources, universally.   

Investment recommendations will be given across the range of vendor choices, utilizing the best of what is available in the market at the lowest cost.

With this in mind, here are some important questions to ponder regarding how your money is being managed:

How is my adviser paid?

If an adviser is paid by commission, it stands to reason that he or she may be motivated to sell investment products. If the adviser is operating under the suitability standard, then that person may opt to maximize his or her commissions instead of finding the investment with the lowest cost to the client. 

Look for an adviser who is paid directly by the client and who does not receive any compensation from another source.


Is My Adviser a Fiduciary?

Just ask your adviser if he or she is going to represent you as a fiduciary, or instead if the adviser represents a financial company as a seller. There is no middle ground. The adviser either represents the client as a buyer’s agent, or a product provider as a seller’s agent.

If your adviser is going to represent you in a fiduciary capacity, ask that he or she signs a Fiduciary Agreement as part of your relationship. Here is a sample Fiduciary Agreement:

Fiduciary Agreement

I will always put the client’s best interests first, ahead of my own and that of my firm. As defined by federal law, I will act as a fiduciary.

When selecting investments, I will act as the client’s agent, selecting the best investments at the best prices, at all times.

While neither I nor anyone else can promise superior investment returns, I will provide impartial advice, and act with skill, care, diligence and good judgment.

I will provide full disclosure of all   important facts and I will fully disclose and fairly manage, in the client’s favor, unavoidable conflicts.

The Department of Labor ruling gives firms that are not operating under the fiduciary standard until January 1, 2018 to fully implement the change. It would not be at all surprising to see one or more financial companies go to court to try to overturn or relax some aspects of this new rule. So the 2018 deadline is anything but locked in stone.

Fiduciaries for Decades

I am certain that the word “fiduciary” was not uttered by either my client Frank or me in our discussions many years ago. However, Frank expected me to put his and Evelyn’s interests first and deliver the best service possible – which we did, and continue to do to this day. Frank and Evelyn* are still clients 20 years later.

Filbrandt Investment Advisers is one of the country's leading experts in dealing with university retirement accounts. We have been serving Frank, Evelyn and our hundreds of other clients as fiduciaries for decades. Learn more about our services at http://www.filbrandtco.com.

* Frank and Evelyn are not our clients’ actual names, which are being protected for the sake of their privacy.


Volume 17, Issue 1

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