When working with a financial advisor to manage your money, it’s important to know whether they’re required to uphold a fiduciary duty to their clients. Being a fiduciary means advisors are obligated to act in the best interests of the investors they serve. When a breach of that duty happens, it’s important to understand what rights you have and how to protect yourself financially.
Meeting the Fiduciary Duty Standard
To understand whether a breach of fiduciary duty has occurred, it’s helpful to know what the fiduciary standard involves. In a nutshell, it means advisors must meet certain ethical standards when assisting clients. Advisors are responsible for:
The fiduciary duty rules apply to registered investment advisors who are regulated by the Investment Advisers Act of 1940. But it’s important to note that a fiduciary relationship can exist in other financial relationships, too.
For example, if you establish a trust and name a trustee to manage its assets, the trustee would be considered a fiduciary. If you’re buying a home, your real estate agent has a fiduciary duty to act in a way that’s to your benefit. In these scenarios, you’re relying on the trustee or agent to act with prudence, good faith, confidentiality and candor.How a Breach of Fiduciary Duty Can Happen
Generally, a breach occurs when your investment advisor does something that goes against the guidelines established under the fiduciary standard. In an investment advisor relationship, examples of a breach might include:
If you think your advisor breached their fiduciary duty in any way, your first action may be to end the relationship and find a new advisor. Beyond that, however, you may be able to file a civil claim for damages if the breach stemmed from negligent action on the part of your advisor.
An attorney can help you determine whether you have standing to make a claim for negligence or fraudulent activity. In order for there to be a breach from a legal perspective, three criteria need to be met.1. Fiduciary Status
You’ll have to prove that your advisor is indeed a fiduciary and had a certain duty to act in a way that was in your best interest at the time the questionable behavior occurred.2. Proof of the Breach
You and your attorney will need to be able to show evidence of what occurred to cause the breach. The scope and duties of the fiduciary relationship need to be clearly defined, too. This is where having good electronic or paper records becomes important. Emails can be used to show evidence of a breach.3. Damages
The third part of the puzzle is damages. You have to be able to prove that your advisor’s actions harmed you in some way. That might include showing how their investment advice or strategy caused you to lose money in the market, or proving that you paid excessive fees that you shouldn’t have, based on their advice.
If one part of the equation is missing, you may not have legal standing to file a civil claim against your advisor for fraud or negligence. Losing money alone from a poor stock or mutual fund investment isn’t enough to bring a case. In other words, you have to be able to connect the dots between the advisor’s actions and any losses you suffered financially.
One thing to check for before filing a lawsuit is an arbitration clause in your investment agreement. If you signed the agreement from your advisor and it includes an arbitration clause, you may be required to go through FINRA-regulated arbitration in lieu of going to civil court. The good news is that if the arbitration outcome swings in your favor, you may be entitled to monetary compensation.What Damages Are You Entitled To If You Win Your Case?
The answer to this largely depends on what your state laws are regarding negligence or fraud claims involving financial advisors. For example, you may be limited as to how much money you can sue for. But generally, you may be able to file a claim for lost profits, out-of-pocket losses, mental anguish caused by the breach and/or punitive damages.
The amount you could receive from FINRA arbitration also varies. Between 2012 and 2016, a small percentage of investors were awarded damages, while 69% were finalized via a settlement agreement.The Bottom Line
Protect yourself against a fiduciary breach of duty by knowing who’s managing your investments. Asking the right questions, such as what the advisor’s investment strategy is and how they’re compensated, is important during the screening process. Once you choose an advisor, read over your investment agreement carefully to understand whether they follow a fiduciary duty and what recourse you have if they breach that duty.Tips for Investors
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