The fiduciary rule is dead. What's an investor to do now?

With regulations in flux, it's a confusing time for those who work with investment professionals. Here's what investors need to know.

  • By Lisa Beilfuss,
  • The Wall Street Journal
  • Fiduciary Responsibilities
  • Fiduciary Responsibilities
  • Fiduciary Responsibilities
  • Fiduciary Responsibilities
  • Fiduciary Responsibilities
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It is a tricky time to be working with an investment professional.

Regulation is in flux, and different types of professionals are held to different standards when it comes to giving advice and recommending products. So, it can be hard to know exactly what you’re paying for.

Muddying the waters, a U.S. Circuit Court in June threw out the Labor Department’s fiduciary rule, an Obama-era regulation that sought to curb conflicts of interest in financial advice that the Obama administration said cost American families $17 billion a year and a percentage point in annual returns.

The decision was a final blow to a rule that the financial-services industry fought, saying it would make advice more costly, and that the Trump administration had put under review for revision or repeal.

The Securities and Exchange Commission, meanwhile, has been working on its own investor-protection measure. The agency’s version may wind up replacing the fiduciary rule, though it is shaping up to be less restrictive for brokers, and consumer advocates say that it would do little to raise the standard of care that is currently required.

Here are a few things investors should know as they navigate their financial relationships.

Names can be crucial

Financial pros can go by a number of titles: There is wealth manager, financial planner, broker, financial adviser—as well as “advisor” with an “o”—and more. The difference is sometimes semantics, but it is often much more.

For one, financial advisers, regulated by the SEC, have for decades been held to a fiduciary standard, meaning they have to put clients’ interests before their own. The requirement traces back to the stock-market crash of 1929 and subsequent Depression, which Congress in part blamed on abuses in the securities industry.

Brokers are regulated by the Financial Industry Regulatory Authority, or Finra, the securities industry’s self-regulatory body. They must provide what the agency describes as “suitable” investment advice—short of the fiduciary care required of their adviser counterparts.

Where things get tricky is that some financial professionals are dually registered, and some have professional designations that carry requirements trumping the standards required by regulators. For example, a broker who’s also a certified financial planner has to serve as a fiduciary, when doing financial planning, to maintain the designation.

The best way to know whether your adviser is a registered investment adviser, broker or both is to search BrokerCheck, a database maintained by Finra. An individual’s profile will denote his or her title and regulatory overseer.

But industry professionals and consumer advocates say investors should confirm any information with their adviser. Even better, the experts say: Investors should ask a financial professional to put in writing whether he or she is a fiduciary in their particular relationship.

Location matters

When it comes to which standard of care is required of an investment professional, where he or she works matters. Advisers who are held to a fiduciary standard must choose products that are in the best interest of the client. But what products an adviser can pick varies from firm to firm.

For example, at stand-alone investment advisories—-those that aren’t connected to a bank or brokerage—advisers typically have access to the universe of investment products, including the cheapest index funds. Some brokers at firms connected to banks do too, but not always. Some firms have house funds and lucrative partnerships with fund companies, and their brokers have more limited menus of investment options from which to choose.

To understand any constraints and incentives an investment adviser might have in recommending products, consumer advocates suggest checking firms’ securities disclosures. Advisory firms regulated by the SEC have to spell out conflicts of interests in those.

With the Labor Department’s fiduciary rule dead, brokers don’t have to disclose conflicts the way they did under the rule. Observers say potential rules from the SEC requiring that brokers serve clients’ best interest may emphasize disclosing conflicts over mitigating them.

For now, the best way to understand conflicts and constraints is to ask your broker, and to have him or her explain product selections.

“Never own something you don’t understand,” says Patti Houlihan, who heads the advocacy group Committee for the Fiduciary Standard. “If you can’t understand [a product] after reading a few pages on it, you shouldn’t be buying it,” she says, suggesting investors walk away from anything that is confusing or sounds too good to be true.

Fees don’t necessarily mean ‘best interest’

Many investment advisers, already required to act as fiduciaries, charge investors a percentage of their assets under management. Doing so eliminates commissions, which can cause conflicts of interest by pushing an adviser to recommend one product over another to the detriment of the client.

After the fiduciary rule was unveiled—and then went into temporary effect—many brokerages accelerated moving clients toward fee-paying accounts from commission accounts. They said it made compliance with the new regulation easier, because charging commissions under the fiduciary rule would require disclosures and contracts that executives said were too onerous and costly.

Fee accounts are regulated by the SEC, meaning once you’re in one, the adviser needs to act as a fiduciary. But that doesn’t mean being put into one was actually in your best interest.

A fee account “doesn’t keep your fees from being way higher than they should be,” says Barbara Roper, director of investor protection at the Consumer Federation of America.

“The fee-based accounts at brokerage firms still incorporate the conflicts of the broker-dealer model,” Ms. Roper says, such as revenue derived from fund companies, proprietary products and incentives meant to encourage broker behavior.

Ms. Roper encourages investors to ask their financial professionals for detailed fee breakdowns. For example, is a 1% advisory fee all-inclusive, or is that separate from underlying product fees? Investors with more complicated financial pictures might pay more to get more service, but even they should be wary of paying much more than 1%, Ms. Roper says.

“That’s a hole you have to dig out of,” she says, referring to the long-term effect of fees on investment returns.

By the same logic, paying commissions doesn’t necessarily mean you don’t have a fiduciary. In the spirit of the obligation, investment professionals are expected to evaluate on an individual basis what type of model is best.

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