Often times changes in consumer behavior lead to changes in industries. The success of companies within those markets will be decided by their ability to operate within the new environment. For example, Blackberry’s inability to pivot quickly enough led to the duopoly of Google’s Android system and the iPhone. Similarly, the consumer’s growing preference for lower-cost investment vehicles led to new regulations in the financial services sector.
On April 6, 2016, the U.S. Department of Labor (DOL) issued its final rule expanding the “investment advice fiduciary” definition under the Employee Retirement Income Security Act of 1974 (ERISA). The rule expands the application of the fiduciary standard (a legal or ethical relationship of trust) to all intermediaries involving ERISA plans (think 401(k) plans) and now individual retirement accounts (IRAs).
Until now, many broker-dealers, investment advisors, insurance agents and others have offered advice outside of the fiduciary standard. There was less stringent oversight regarding products and investment vehicles used in client accounts because they only needed to prove it was suitable for a client, even if it was not in their best interest (fiduciary). As a result, the DOL’s Fiduciary Rule is changing how financial advice and financial service companies are operating. Merrill Lynch, for example, will no longer give retirement savers the option of paying a commission for funds held within retirement accounts.
For consumers seeking financial advice in a post-Fiduciary Rule world, here are four important questions to be asking:
1. Does the advisor work for an RIA (Registered Investment Advisor)?
Each RIA operates under the Investment Company Act of 1940 and must act in the best interest of every client. An RIA has a fiduciary standard by law, thus, the new Department of Labor regulation does not materially impact how they operate their business other than requiring additional paperwork and documentation to comply.
2. What if the advisor does not work for an RIA?
Beginning in 2017, every advisor will have a fiduciary obligation for retirement accounts. All retirement accounts must be managed in the best interest of the client. For many companies that means they will no longer be selling commission-based products inside retirement accounts. If they do, a best-interest contract will be signed disclosing the commission and stating it is still in the client’s best interest. However, many companies are not taking the litigation risk of best-interest contracts and will forgo the commissions.
According to Thrivent Financial’s complaint against the law, if it were to continue to engage in such transactions “it would be subject to steep and serious penalties under federal law. As a result, without an exemption, the new rule would almost completely eliminate Thrivent’s ability to offer financial products to its members in connection with their retirement planning through IRAs.”
Although non-RIA firms will slow down commission sales in retirement accounts, that may not be the case for taxable accounts. For individuals and couples that have saved extra money outside of retirement accounts and want to invest it, the Department of Labor fiduciary rule does not apply to these taxable accounts. If a prospective advisor suggests non-traded REITS and variable annuities with this portion of your portfolio, be very skeptical.
3. Does the advisor have a management fee?
The standard in the RIA industry (and soon in the broker world) is an assets-under-management fee (AUM). As brokers/agents transition away from income through commission-based mutual funds, accounts may still be invested in mutual funds. If an advisor is charging an AUM fee on an account invested 100 percent in mutual funds, be skeptical. This is an expensive way to invest.
Given the time needed to service smaller accounts going forward, companies are increasing their management fees. Edward Jones clients with less than $100,000 will be moved to fee-based and the management fee will run between 1.35 and 1.75 percent.
Another issue is the change in responsibilities and the skills required to meet them. Ask yourself, “If a broker/agent managed assets by receiving a mutual fund commission, do they have the skillset to manage asset allocation under the new standard?”
Although the new regulations will force companies into the assets-under-management fee model, promoting a focus on investment management, the firm should also include other services. For example, does the advisor also provides financial planning for their clients? Investment advisors must not only pivot to a management fee model, they must also add value to their clients through other services. This will be a challenge for some and may require a multi-disciplinary team to assist with client services.
4. Is this the first time you’re looking for financial advice?
Unfortunately, for young investors the new rules will limit their options. Before the ruling, an advisor could justify their time to work with a young investor by charging a commission. A 1% commision on $5,000 is $50 per year. A 5% commission on $5,000 is $250. A busy advisor can justify spending time with a young investor more easily with the latter approach.
Given the fiduciary obligation on retirement accounts and the industry shift to an AUM fee model, there’s some concern young investors and all investors with smaller accounts will be left with little advice. In fact, Edward Jones will stop accepting retirement accounts of less than $5,000.