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Planners Fight Back On Fiduciary Standard

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WASHINGTON BUREAU — Sen. Herbert Kohl has proposed a financial services bill amendment that would apply a fiduciary standard of care to all broker-dealers, registered investment advisors and financial planners who perform financial planning duties.

Kohl, D-Wis., chairman of the Senate Special Committee on Aging, would put all of those broker-dealers, RIAs and planners under the jurisdiction of a new Financial Planning Oversight Board.

The proposed amendment would affect “anybody who holds himself out to the public as a financial planner and provides, or offers to provide, directly to individuals advice with respect to the management of financial assets in not fewer than two areas of financial planning, including–investment planning, income tax planning, education planning, retirement planning, estate planning, and risk management,” according to the amendment text.

Kohl also has included a version of a House financial services bill provision that would provide grants to states that strengthen regulations regarding the sale of investment products to seniors.

Under the amendment, states would have to adopt standards put forward by the North American Securities Administrators Association, Washington, banning use of “senior” designations that are not backed by rigorous standards.

Sen. Christopher Dodd, D-Conn., chairman of the Senate Banking, Housing and Urban Affairs Committee, says he hopes to unveil the underlying financial services bill Monday.

Dodd reportedly already has agreed to add an amendment by Sen. Timothy Johnson, S-S.D., and Michael Crapo, R-Idaho, that would have the U.S. Securities and Exchange Commission start by studying the “standard of care” issue,” to see whether there are any gaps or overlaps in the rules that apply to broker-dealers and investment advisors, rather immediately applying a single standard of care.

The National Association of Insurance and Financial Advisors, Falls Church, Va., blasted the proposed Kohl amendment, issuing a statement calling it “a harmful and unnecessary step that would impose additional regulation on already-regulated individuals.”

The bill could end up with both the Kohl amendment and the Johnson-Crapo amendment in it, according to NAIFA President Tom Currey.

“Because the Johnson-Crapo approach study result in the requirement that the SEC act to address gaps in regulation that are found, it seems appropriate to address this issue in the right order and not put the cart before the horse,” Currey says in a statement.

The American Council of Life Insurers, Washington, put out a statement saying the Kohl proposal would create more confusing about the delivery of financial advice and products without helping consumers, and without actually harmonizing standards of conduct for brokers, dealers and investment advisors.

The ACLI would support a “harmonized regulatory standard,” and a harmonized standard of conduct, for brokers, dealers and advisors who provide personalized investment advice about securities to retail investors if those standards help consumers without making distribution of financial services less efficient, the ACLI says.

Harmonized standards that the ACLI could support would include disclosures about the relationships of brokers, dealers and advisors, and disclosures of any material conflicts of interest, the ACLI says.

Groups representing financial planners support the idea of applying a fiduciary standard of care to broker-dealers who provide personalized financial advice, and insurance industry officials say they believe the Kohl amendment might reflect the work of the planners’ Financial Planning Coalition, Washington.

The amendment apparently would let planners avoid being regulated by the Financial Industry Regulatory Authority, the industry officials say.


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