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Gail MarksJarvis: Investment advice? Or sales pitch? New rule will make that clear for investors

McClatchy-Tribune Information Services

Jan. 23, 2017


Should you trust the adviser whoís telling you what to do with your money?

Unfortunately, many should not. The sad story is that if you are like most Americans, you are easy prey for the money advice business thatís involved with over $14 trillion of Americansí retirement savings.

Typically, people seek out professional advice about their money because they donít have a clue about how to proceed. They know they have to somehow stretch their hard-earned savings into years of spending money once they quit working. But investing properly is a mystery, the fine print that goes with products like annuities is overwhelming, and finding the right person to help can be just as perplexing.

Too often, Americans end up in the arms of so-called advisers who arenít really there to protect and help them. They are salesmen or saleswomen, not true advisers who put their client needs first. These brokers arenít rewarded by their employers for steering you into top-quality investments or insurance at the lowest price. They are hired to sell, just like the guy on the car lot. And that means many will sell whatís most lucrative to them and the firms that keep them on the job ó not necessarily whatís best for you.

These so-called "advisers" may have titles like "financial consultant" and wear nice suits while smiling warmly. They may devote time to little league, community organizations or religious institutions. They may have clients who are rich or famous, or your friends. But what they often wonít tell you ó unless you probe for it ó is that they arenít paid to give you the best advice. And amid the naivete of some clients, their sales behavior can be like taking candy from babies. Americans are wasting about $17 billion a year on unnecessary fees in connection with investment advice that isnít aimed at their best interests, according to the government.

Faced with the prospect that millions of Americans will run out of money in retirement and become a burden on government, the U.S. government took action last year to try to take some confusion out of the advice business. The Department of Labor is imposing whatís known as the "fiduciary rule" to improve the chances that when an adviser gives money advice itís actually untainted advice ó best for you, and not a disguised sales pitch. Numerous investment and insurance firms, plus business organizations ranging from the U.S. Chamber of Commerce to the Insured Retirement Institute and the Securities Industry and Financial Markets Association, sued to stop the new rule. Many had been fighting attempts to impose a fiduciary rule for over a decade.

Those fighting the fiduciary standard claim that tightening rules around advice will lead firms to stop helping clients; especially people with little money in individual retirement accounts and workplace plans such as 401(k)s. The stakes are huge for the industry: There is about $25 trillion in U.S. retirement assets, including about $14.4 trillion in IRAs and plans such as 401(k)s, that would be subject to the fiduciary standard.

The industryís fight continues, with U.S. Chamber President and CEO Tom Donohue noting in a recent blog post, "we are urging immediate action to undo the Department of Laborís Fiduciary Rule." With the Obama administration leaving office, and new Republican leadership promising less government regulation, the fight against the fiduciary rule goes into a new phase. Fearing an overturn of the fiduciary standard, the Consumer Federation of America in the last days of the Obama administration circulated a report that takes aim at investment business lobbying efforts.

Barbara Roper and Micah Hauptman of the federation examined the websites of over a dozen brokerage firms and found that they emphasize "advice" and help "planning" for retirement to attract clients. Yet, the report said the lobbyists for those same firms have been fighting the fiduciary rule by claiming that they donít promise advice and that clients know the consultant sitting across the desk from them is only a salesperson.

"Their marketing is grossly deceptive and securities and insurance regulators have an obligation to step in and bring a halt to the misrepresentation," the report said.

As it now stands, when April arrives the new fiduciary rule is supposed to start being phased in with investment professionals having to live under tougher controls if they want to give advice on IRAs and 401(k)-type plans.

Under the fiduciary rule, brokers will have to make it clear that they are salespeople so you understand the arrangement the same way you do when you go to buy a car. People who give advice will have to declare themselves "fiduciaries" in black and white on paper. It will be the law.

But donít take comfort in these new protections yet. First, know they arenít in place now. So if you want to determine if you can trust an adviser now, you must ask if he or she is a fiduciary and examine their two government-required forms: ADV Forms I and II. Certain credentials ó such as a certified financial planner or registered investment adviser designation ó will help you spot fiduciaries. But also check out the person on BrokerCheck (www.brokercheck.finra.org) to see if your adviser or the firm has been in trouble with regulators. On the ADV form, also examine whether the person gets commissions ó a business arrangement that could mean the adviser collects a fee based on what he or she sells you.

To see if your adviser has been picking solid or weak mutual funds for you, type in the name of your fund at www.finance.yahoo.com. Then go to "performance" for that fund and scroll to "trailing returns benchmark." See one year, five year and 10-year performance. You want a fund that consistently has had a return at least as strong as the "category" return for more than a year. If the return ó or money made in the fund ó consistently lags the category of other funds, you have to wonder why your adviser would have you paying good money to be in a laggard. One year isnít the key. Looking at the trend over five or 10 years gives you real insight.

If your adviser is picking stocks for you, ask the adviser to show you how your stock portfolio has performed compared with a benchmark like the Standard & Poorís 500 index for large company stocks or the Russell 2000 index for smaller companies.