@ragingloli I already told you I am NOT shaking your hand!!
Fiduciary Duty
A fiduciary duty is the highest standard of care. The person who has a fiduciary duty is called the fiduciary, and the person to whom he owes the duty, is typically referred to as the principal or the beneficiary. If an individual breaches the fiduciary duties, he or she would need to account for the ill-gotten profit. His or her beneficiaries are entitled to damages, even if they suffered no harm.
Fiduciary duties exist to encourage specialization and induce people to enter into a fiduciary relationship. By imposing these duties, the law reduces the risk of abuse of a beneficiary by the fiduciary. As a result, potential beneficiaries can have greater confidence in seeking out a fiduciary.
Table of Contents
Corporations and Fiduciary Duty
Charities and Fiduciary Duty
Fiduciary and Confidential Relations
Menu of Sources
1. Corporations and Fiduciary Duty
In discussing corporate fiduciary duties, it is very helpful to refer to the corporate law of Delaware. More than half of publicly traded companies are incorporated in Delaware. Nonetheless, corporations incorporated in other states may be bound by different rules and obligations. Consult Table of Statutes for statutes in specific jurisdictions.
Directors of corporations, in fulfilling their managerial responsibilities, are charged with certain fiduciary duties. The primary duties are the duty of care and the duty of loyalty.
Duty of Care: This duty requires that directors inform themselves “prior to making a business decision, of all material information reasonably available to them.” Whether the directors were informed of all material information depends on the quality of the information, the advice available, and whether the directors had “sufficient opportunity to acquire knowledge concerning the problem before action.” Moreover, a director may not simply accept the information presented. Rather, the director must assess the information with a “critical eye,” so as to protect the interests of the corporations and its stockholders.
Duty of Loyalty: As the Delaware Supreme Court explained in Guth v. Loft, 5 A.2d 503, 510 (Del. 1939): “Corporate officers and directors are not permitted to use their position of trust and confidence to further their private interests. . . . A public policy, existing through the years, and derived from a profound knowledge of human characteristics and motives, has established a rule that demands of a corporate officer or director, peremptorily and inexorably, the most scrupulous observance of his duty, not only affirmatively to protect the interests of the corporation committed to his charge, but to refrain from doing anything that would work injury to the corporation, or to deprive it of profit or advantage which his skill and ability might properly bring to it, or to enable it to make in the reasonable and lawful exercise of its power.”
Additionally, courts have imposed the following duties:
Duty of Good Faith: Requiring the director to advance interests of the corporation, not violate the law, and fulfill his or her duties. For a thorough discussion of this duty, see In re The Walt Disney Co. Derivative Litig., 906 A.2d 27 (Del. 2006).
Duty of Confidentiality: Required directors to keep corporate information confidential and not disclose it for their own benefit. Consult Guth v. Loft, Inc., 5 A.2d 503 (Del. 1939) for more information.
Duty of Prudence: Requires a trustee to administer a trust with a degree of care, skill, and caution that a prudent trustee would exercise. Consult Amgen Inc. v. Harris, 136 S. Ct. 758 (2016) for more information.
Duty of Disclosure: This duty requires directors to act with “complete candor.” In certain circumstances, this requires the directors to disclose to the stockholders “all of the facts and circumstances” relevant to the directors’ decision.
These duties do not mean, however, that the court will always impose its own review over directors’ decisions. Under the “business judgment rule” the court presumes “that in making a business decision the directors of a corporation acted in an informed basis, in good faith and in the honest belief that the actions taken was in the bests interests of the company.” Under this rule, courts will generally refrain from questioning the directors’ judgment so long as their judgment can be attributed to some rational corporate purpose.
For a very thorough discussion of corporate officers’ fiduciary duties, consult William M. Lafferty, Lisa A. Schmidt, & Donald J. Wolfe, Jr., A Brief Introduction to the Fiduciary Duties of Directors Under Delaware Law, 116 Penn. St. L. Rev. 837 (2012).
Top
2. Charities and Fiduciary Duty
Some courts have not required officers of a charity to abide by the same rules as corporate officers. For example, an officer may be allowed to deal in a manner financially advantageous to himself or herself, so long as the charity is not subject to any expense. This does not mean, however, that an officer of a charity is permitted to divert earning capacity of his charity to himself. For further information consult Boston Athletic Assoc. v. Int’l Marathons, Inc., 392 Mass. 356 (1984), and Samuel & Jessie Kenney Presbyterian Home v. State, 174 Wash. 19 (1933).
Top
3. Fiduciary or Confidential Relations
Certain relationships impose fiduciary duties. For example, attorneys have a fiduciary duty to their client, a principal to his agent, a guardian to his ward, a priest to his parishioner, and a doctor to his patient. Fiduciary duty is imposed whenever confidence is reposed on one side in a contractual relationship, so as to allow that side to exert influence and dominance over the other.
Different states treat transactions between the fiduciary and the beneficiary differently, but typically in favor of favor of the beneficiary. Thus, transactions between parties in a fiduciary or confidential relationship are voidable, or prima facie voidable, or may be declared void, or the contract may be canceled. The fiduciary must prove the transaction was fair.
What is a ‘Fiduciary’
Essentially, a fiduciary is a person or organization that owes to another the duties of good faith and trust. The highest legal duty of one party to another, it also involves being bound ethically to act in the other’s best interests. A fiduciary might be responsible for general well-being, but often it involves finances – managing the assets of another person, or of a group of people, for example. Money managers, bankers, accountants, executors, board members, and corporate officers can all be considered fiduciaries.
BREAKING DOWN ‘Fiduciary’
A fiduciary’s responsibilities or duties are both ethical and legal. When a party knowingly accepts a fiduciary duty on behalf of another party, he or she is required to act in the best interest of the principal, the party whose assets they are managing. The fiduciary is expected to manage the assets for the benefit of the other person rather than for his or her own profit, and cannot benefit personally from their management of assets. This is what is known as a prudent person standard of care, a standard that originally stems from an 1830 court ruling. This formulation of the prudent-person rule required that a person acting as fiduciary was required to act first and foremost with the needs of beneficiaries in mind.
Strict care is taken to ensure no conflict of interest arises between the fiduciary and his principal. Fiduciaries cannot profit from their position, according to an English High Court ruling, Keech vs. Sandford (1726), and in most cases, no profit is to be made from the relationship unless explicit consent is granted at the time the relationship begins. If the principal provides consent, then the fiduciary can keep whatever benefit they have received; these benefits can be either monetary or defined more broadly as an “opportunity.”
Types of Fiduciary Relationships
Fiduciary duties appear in a wide variety of common business relationships. The most common types of fiduciary relationships are between a trustee and a beneficiary. Other types of relationships where fiduciary duties are involved include:
Corporate board members and shareholders
Executors and legatees
Guardians and wards
Promoters and stock subscribers
Lawyers and clients
Investment corporations and investors
Trustee/Beneficiary
Estate arrangements and implemented trusts involve a trustee and a beneficiary. An individual named as a trust or estate trustee is the fiduciary, and the beneficiary is the principal. Under a trustee/beneficiary duty, the fiduciary has legal ownership of the property or assets and holds the power necessary to handle assets held in the name of the trust. However, the trustee must make decisions that are in the best interest of the beneficiary as the latter holds equitable title to the property. The trustee/beneficiary relationship is an important aspect of comprehensive estate planning, and special care should be taken to determine who is designated as trustee.
Politicians often set up blind trusts in order to avoid conflict of interest scandals. A blind trust is relationship in which a trustee is in charge of the investment of a beneficiary’s corpus without the beneficiary knowing how the corpus is being invested. Even while the beneficiary has no knowledge, the trustee has a fiduciary duty to invest the corpus according to the prudent person standard of conduct.
Board Member/Shareholder
A similar fiduciary duty can be held by corporate directors, seeing as they can be considered trustees for stockholders if on the board of a corporation, or trustees of depositors if service as director of a bank. Specific duties include:
the duty of care, which applies to the way the board makes decisions that affect the future of the business. The board has the duty to fully investigate all possible decisions and how they may impact the business; If the board is voting to elect a new CEO, for example, the decision should not be made based solely on the board’s knowledge or opinion of one possible candidate; it is the board’s responsibility to investigate all viable applicants to ensure the best person for the job is chosen.
the duty to act in good faith. Even after it reasonably investigates all the options before it, the board has the responsibility to choose the option it believes best serves the interests of the business and its shareholders.
the duty of loyalty. This means the board is required to put no other causes, interests or affiliations above its allegiance to the company and the company’s investors. Board members must refrain from personal or professional dealings that might put their own self-interest or that of another person or business above the interest of the company.
If a member of a board of directors is found to be in breach of his fiduciary duty, he can be held liable in a court of law by the company itself or its shareholders.
Executor/Legatee
Fiduciary activities can also apply to specific or one-time transactions. For example, a fiduciary deed is used to transfer property rights in a sale when a fiduciary must act as an executor of the sale on behalf of the property owner. A fiduciary deed is useful when a property owner wishes to sell but is unable to handle his affairs due to illness, incompetence or other circumstances, and needs someone to act in his stead. A fiduciary is required by law to disclose to the potential buyer the true condition of the property being sold, and he cannot receive any financial benefits from the sale. A fiduciary deed is also useful when the property owner is deceased and his property is part of an estate that needs oversight or management.
Guardian/Ward
Under a guardian/ward relationship, legal guardianship of a minor is transferred to an appointed adult. The guardian, as the fiduciary, is tasked with ensuring the minor child or ward has appropriate care, which can include deciding where the minor attends school, that he has suitable medical care, that he is disciplined in a reasonable manner and that his daily welfare remains intact. A guardian is appointed by the state court when the natural guardian of a minor child is not able to care for the child any longer. In most states, a guardian/ward relationship remains intact until the minor child reaches the age of majority.
Attorney/Client
The attorney/client fiduciary relationship is arguably one of the most stringent. The U.S. Supreme Court states that the highest level of trust and confidence must exist between an attorney and his client and that an attorney, as fiduciary, must act in complete fairness, loyalty and fidelity in each representation of and dealing with clients. Attorneys are held liable for breaches of their fiduciary duties by the client and are accountable to the court in which that client is represented when a breach occurs.
Principal/Agent
A more generic example of fiduciary duty lies in the principal/agent relationship. Any individual person, corporation, partnership or government agency can act as a principal or agent as long as the person or business has the legal capacity to do so. Under a principal/agent duty, an agent is legally appointed to act on behalf of the principal without conflict of interest. A common example of a principal/agent relationship that implies fiduciary duty is a group of shareholders as principals electing management or C-suite individuals to act as agents. Similarly, investors act as principals when selecting investment fund managers as agents to manage assets.
Investment Fiduciary
While it may seem as if an investment fiduciary would be a financial professional (money manager, banker, etc.), an investment fiduciary is any person who has the legal responsibility for managing somebody else’s money. That means if you volunteered to sit on investment committee of the board of your local charity or other organization, you have a fiduciary responsibility, too: You have been placed in a position of trust and there may be consequences for betrayal of that trust. Hiring a financial or investment expert does not relieve the committee members of all of their duties. They still have an obligation to prudently select and monitor the activities of the expert.
SUITABILITY VS. FIDUCIARY STANDARDS
If your investment advisor is a Registered Investment Advisor, he or she does share fiduciary responsibility with the investment committee. On the other hand, a broker, who works for a brokers-dealer, may not. Some brokerage firms don’t want or allow their brokers to be fiduciaries.
Investment advisors, who are usually fee-based, are bound to a fiduciary standard that was established as part of the Investment Advisors Act of 1940. They can be regulated by the SEC or state securities regulators. The act is pretty specific in defining what a fiduciary means, and it stipulates a duty of loyalty and care, which simply means that the advisor must put their client’s interests above their own. For example, the advisor cannot buy securities for his or her account prior to buying them for a client, and is prohibited from making trades that may result in higher commissions for the advisor or his or her investment firm.
It also means that the advisor must do his or her best to make sure investment advice is made using accurate and complete information, or basically, that the analysis is thorough and as accurate as possible. Avoiding conflicts of interest is important when acting as a fiduciary, and it means that an advisor must disclose any potential conflicts to placing the client’s interests ahead of the advisor’s. Additionally, the advisor needs to place trades under a “best execution” standard, meaning he or she must strive to trade securities with the best combination of low cost and efficient execution.
The Suitability Rule
Broker-dealers, who are often compensated by commission, generally only have to fulfill a suitability obligation, which is defined as making recommendations that are consistent with the best interests of the underlying customer. Broker-dealers are regulated by the Financial Industry Regulatory Authority (FINRA) under standards that require them to make suitable recommendations to their clients. Instead of having to place his or her interests below that of the client, the suitability standard only details that the broker-dealer has to reasonably believe that any recommendations made are suitable for clients, in terms of the client’s financial needs, objectives and unique circumstances. A key distinction in terms of loyalty is also important, in that a broker’s duty is to the broker-dealer he or she works for, not necessarily the client served.
Other descriptions of suitability include making sure transaction costs are not excessive or that are recommendation is not unsuitable for a client. Examples that may violate suitability include excessive trading, churning the account simply to generate more commissions or frequently switching account assets to generate transaction income for the broker-dealer. Also, the need to disclose potential conflicts of interest is not as strict a requirement for brokers; an investment only has to be suitable, it doesn’t necessarily have to be consistent with the individual investor’s objectives and profile.
The suitability standard can end up causing conflicts between a broker-dealer and client. The most obvious conflict has to do with compensation. Under a fiduciary standard, an investment advisor would be strictly prohibited from buying a mutual fund or other investment because it would garner him or her a higher fee or commission. Under the suitability requirement, this isn’t necessarily the case, because as long as the investment is suitable for the client, it can be purchased for the client. This can also incentivize brokers to sell their own products ahead of competing products that may be at a lower cost.
While the term “suitability” was the standard for transactional accounts or brokerage accounts previously, the new Department of Labor Fiduciary Rule has toughened things up for brokers. Now, anyone with retirement money under management, who makes recommendations or solicitations for an IRA or other tax-advantaged retirement account, is a fiduciary and must adhere to that standard. However, the new law does not apply to other sorts of accounts, including after-tax investment accounts that may be earmarked as retirement savings.
Fiduciary Risks and Insurance
The possibility of a trustee/agent who is not optimally performing in the beneficiary’s best interests is referred to as “fiduciary risk.” This does not necessarily mean that the trustee is using the beneficiary’s resources for his/her own benefit; this could be the risk that the trustee is not achieving the best value for the beneficiary. For example, a situation where a fund manager (agent) is making more trades than necessary for a client’s portfolio is a source of fiduciary risk, because the fund manager is slowly eroding the client’s gains by incurring higher transaction costs than are needed.
In contrast, a situation in which an individual or entity who is legally appointed to manage another party’s assets uses his or her power to benefit financially, or serve his or her self-interest in some other way, in an unethical or illegal fashion is called “fiduciary abuse” or “fiduciary fraud.”
A business can insure the individuals who act as fiduciaries of a qualified retirement plan, such as the company’s directors, officers, employees and other natural person trustees. Meant to fill in the gaps existing in traditional coverage offered through employee benefits liability or directors and officers policies, fiduciary liability insurance provides financial protection when the need for litigation arises – due to scenarios such as purported mismanaging funds or investments, administrative errors or delays in transfers or distributions, a change or reduction in benefits, or erroneous advice surrounding investment allocation within the plan.
Investment Fiduciary Guidelines
In response to the need for guidance for fiduciaries, the nonprofit Foundation for Fiduciary Studies was established to define the following prudent investment practices:
Step 1: Organize
The process begins with fiduciaries educating themselves on the laws and rules that will apply to their situations. For example, fiduciaries of retirement plans need to understand that the Employees Retirement and Income Security Act (ERISA) is the primary legislation that governs their actions. Once fiduciaries identify their governing rules, they then need to define the roles and responsibilities of all parties involved in the process. If investment service providers are used, then any service agreements should be in writing.
Step 2: Formalize
Formalizing the investment process starts by creating the investment program’s goals and objectives. Fiduciaries should identify factors such as investment horizon, an acceptable level of risk and expected return. By identifying these factors, fiduciaries create the framework for evaluating investment options.
Fiduciaries then need to select appropriate asset classes that will enable them to create a diversified portfolio through some justifiable methodology. Most fiduciaries go about this by employing modern portfolio theory (MPT) because MPT is one of the most accepted methods for creating investment portfolios that target a desired risk/return profile.
Finally, the fiduciary should formalize these steps by creating an investment policy statement, which provides the necessary detail to implement a specific investment strategy. Now the fiduciary is ready to proceed with the implementation of the investment program as identified in the first two steps.
Step 3: Implement
The implementation phase is where specific investments or investment managers are selected to fulfill the requirements detailed in the investment policy statement. A due diligence process must be designed to evaluate potential investments. The due diligence process should identify criteria used to evaluate and filter through the pool of potential investment options.
The implementation phase is usually performed with the assistance of an investment advisor because many fiduciaries lack the skill and/or resources to perform this step. When an advisor is used to assist in the implementation phase, fiduciaries and advisors must communicate to ensure that an agreed upon due diligence process is being used in the selection of investments or managers.
Step 4: Monitor
The final step can be the most time consuming and also the most neglected part of the process. Some fiduciaries do not sense the urgency for monitoring if they got the first three steps correct. Fiduciaries should not neglect any of their responsibilities, because they could be equally liable for negligence in each step.
In order to properly monitor the investment process, fiduciaries must periodically review reports that compare their investments’ performance against the appropriate index, peer group and whether the investment policy statement objectives are being met. Simply monitoring performance statistics is not enough. Fiduciaries must also monitor qualitative data, such as changes in the organizational structure of investment managers used in the portfolio. If the investment decision makers in an organization have left, or if their level of authority has changed, then investors must consider how this information may impact future performance.
In addition to performance reviews, fiduciaries must review expenses incurred in the implementation of the process. Fiduciaries are not only responsible for how funds are invested, but they are also responsible for how funds are spent. Investment fees have a direct impact on performance and fiduciaries must ensure that fees paid for investment management are fair and reasonable.
Fiduciary Rules and Regulations
The Department of the Treasury’s agency the Office of the Comptroller of the Currency is in charge of regulating federal savings associations and their fiduciary activities. Multiple fiduciary duties may at times be at conflict with one another, a problem that often occurs with real estate agents and lawyers. Two opposing interests can at best be balanced; however, balancing interests is not the same as serving the best interest of a client.
Fiduciary certifications are distributed at the state level and can be revoked by the courts if a person is found to neglect his or her duties. To become certified, a fiduciary is required to pass an examination that tests his or her knowledge of laws, practices, and security related procedures such as background checks and screening.
Trading Center
Next Up Fiduciary Negligence
Fiduciary
Self-Dealing
Fiduciary Negligence
Prudent Expert Act
Prudent Investor Act
Financial Advisor
Prudent Investment
Duty
Trustor
Prudent Investor Rule
Self-Dealing
SHARE
A situation in which a fiduciary acts in his own best interest in a transaction rather than in the best interest of his clients. A fiduciary is legally obligated to act in the best interest of his clients. If he breaches this obligation, the wronged party can sue the fiduciary for monetary damages.
BREAKING DOWN ‘Self-Dealing’
Individuals who may be in the position of fiduciary include trustees, attorneys, corporate officers, board members and financial advisors. An example of self-dealing would be if a broker knowingly advised his clients to purchase products which would cause them harm, but would pay the broker a hefty commission.
Read more: Fiduciary Definition | Investopedia http://www.investopedia.com/terms/f/fiduciary.asp#ixzz4X3bPyTot
Follow us: Investopedia on Facebook
Fiduciary
An individual in whom another has placed the utmost trust and confidence to manage and protect property or money. The relationship wherein one person has an obligation to act for another’s benefit.
A fiduciary relationship encompasses the idea of faith and confidence and is generally established only when the confidence given by one person is actually accepted by the other person. Mere respect for another individual’s judgment or general trust in his or her character is ordinarily insufficient for the creation of a fiduciary relationship. The duties of a fiduciary include loyalty and reasonable care of the assets within custody. All of the fiduciary’s actions are performed for the advantage of the beneficiary.
Courts have neither defined the particular circumstances of fiduciary relationships nor set any limitations on circumstances from which such an alliance may arise. Certain relationships are, however, universally regarded as fiduciary. The term embraces legal relationships such as those between attorney and client, Broker and principal, principal and agent, trustee and beneficiary, and executors or administrators and the heirs of a decedent’s estate.
A fiduciary relationship extends to every possible case in which one side places confidence in the other and such confidence is accepted; this causes dependence by the one individual and influence by the other. Blood relation alone does not automatically bring about a fiduciary relationship. A fiduciary relationship does not necessarily arise between parents and children or brothers and sisters.
The courts stringently examine transactions between people involved in fiduciary relationships toward one another. Particular scrutiny is placed upon any transaction by which a dominant individual obtains any advantage or profit at the expense of the party under his or her influence. Such transaction, in which Undue Influence of the fiduciary can be established, is void.
West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
fiduciary
1) n. from the Latin fiducia, meaning “trust,” a person (or a business like a bank or stock brokerage) who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty. The most common is a trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators of estates, real estate agents, bankers, stock brokers, title companies, or anyone who undertakes to assist someone who places complete confidence and trust in that person or company. Characteristically, the fiduciary has greater knowledge and expertise about the matters being handled. A fiduciary is held to a standard of conduct and trust above that of a stranger or of a casual business person. He/she/it must avoid “self-dealing” or “conflicts of interests” in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it. For example, a stockbroker must consider the best investment for the client, and not buy or sell on the basis of what brings him/her the highest commission. While a fiduciary and the beneficiary may join together in a business venture or a purchase of property, the best interest of the beneficiary must be primary, and absolute candor is required of the fiduciary. 2) adj. defining a situation or relationship in which a person is acting as a fiduciary for another. (See: trust, fiduciary relationship)
Copyright © 1981–2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
fiduciaryadjective commanding belief, commanddng confidence, confidential, deserving belief, fiducial, founded in confidence, reliable, sound, trusted, worthy of belief, worthy of credence
Associated concepts: fiduciary bequest, fiduciary bond, fiduuiary capacity, fiduciar…................
Composing members:
0
