In case there was any confusion, Phyllis Borzi, Assistant Secretary of Labor at the Employee Benefits Security Administration, explained that under any definition a fiduciary is “anyone who provides investment advice for a fee.” “If you act like a fiduciary you will be held to a fiduciary standard even if you don’t call yourself a fiduciary,” she said on Tuesday.
Borzi clarified that the definition of a fiduciary doesn’t apply to generalized advice like what an advisor would send out in a newsletter or on their website, but individualized advice.
“The overwhelming approach people use is to try not to be fiduciaries,” Borzi explained. “Because if you’re a fiduciary you have to be loyal and prudent. And you’re responsible if your advice is flawed.”
On Monday Douglas Scheidt, associate director and chief counsel in the SEC’s Office of Investment Management, said in a panel discussion that he believed the SEC would issue a rule to make brokers fiduciaries this year, it would not issue a ruling on the overall harmonization of advisor and broker rules.
The discussion about a fiduciary standard has become especially critical in the retirement industry. Most Americans have defined contribution plans or 401(k) plans, yet very few professional asset managers advise participants in those plans, Borzi said. The plan sponsors get advice from those who are fiduciaries, but consumers don’t get that kind of advice.
“We are at a crossroads right now,” Borzi said. “It’s clear more now than ever before that so many people are in retirement vehicles where it’s critically important they have access to simple, understandable and unbiased advice. We need to make sure the advice they get is the advice that is in their best interest.”
As it stands now, there are many loopholes that allow investment advisor and financial planners to get away with not being fiduciaries, she added. “Everyone and their grandfather calls themselves an investment advisor or financial planner,” she said. The proposed regulation says that if a person provides individualized investment advice they’re a fiduciary. There is a seller’s exemption for those who only sell products and don’t give advice though.
“Our agency is making sure no one will violate the rules and the rules will be harmonized,” Borzi explained. “We are trying to increase transparency, increase accountability and minimize the chances of conflicts of interest.”
Meanwhile, Mark Iwry, Senior Advisor to the Secretary and Deputy Assistant Secretary for Retirement and Health Policy at the Department of Treasury, discussed how pensions focused on the risk of outliving one’s assets in a way that 401(k) plans and defined contribution plans do not. “A 401(k) or RIA cannot guarantee lifetime benefits,” Iwry said. We know there are challenges here. The defined contribution plans have shifted the framing from speaking of benefits in terms of monthly payouts you’ll receive at a certain age to speaking about lump sums.”
The Obama Administration plans to release guidance on breaking down barriers to access to annuities and how to encourage Americans to utilize guaranteed income to supplement their retirement savings, but Iwry hesitated to predict when that guidance would be available.