Independent Fiduciary Role Set to "Explode"

Speaking at the Independent Fiduciary Symposium in New York on May 26, Mamorsky asserted that, “the independent fiduciary is the most important position in the ERISA world today.” Sponsors don’t want to have fiduciary responsibility for their ERISA plans. Most don’t have the time or skills needed to fulfill this responsibility, according to Mamorsky. And many don’t even realize that they have a fiduciary obligation to participants; that leaves them open to lawsuits by participants or missing compliance with IRS or ERISA rules that could disqualify a plan–and result in hefty monetary sanctions.

When sponsors understand that they can outsource the fiduciary responsibility to an expert, it would seem to be an easy choice for them to make. Mamorsky says this area of expertise is ready to “explode,” especially with the changes pending in Department of Labor legislation that is expected to require that plans reveal all fees or costs to participants.

Far from a typical plan in which, say, 401(k) participants must pick their own portfolios even if they totally lack investing expertise, the goals for plans run by independent fiduciaries include: better run plans that stay qualified, a lower cost to participants, professionally managed portfolios–not target date funds–but portfolios; and the offloading of the fiduciary responsibilities from the sponsor. The individuals don’t pick the investments for their portfolio–investment fiduciaries do.

An independent fiduciary is the “decision maker” on an ERISA plan, the “named fiduciary” in the plan document–a/k/a the “big Kahuna,” according to Hutcheson. He or she has the power to name other, limited fiduciaries including the administrator (the plan’s “communicator), investment fiduciary, and the fiduciary responsible for monitoring the plan. The named fiduciary is appointed by the board of the company after the current fiduciary resigns; that “starts the clock ticking” on a three-year residual fiduciary duty of the sponsor.