Advisors take note: Starting on July 1, advisors and firms under the Labor Department's new fiduciary prohibited transaction exemption "will need to provide to the participant, in writing, the specific reasons why a rollover is in [their] best interest," according to ERISA attorney Fred Reish, partner at Faegre Drinker.
"As a result, the analysis and recommendation needs to be personalized, or individualized, to the participant and his or her circumstances," Reish told ThinkAdvisor Wednesday in an email.
Under Labor's fiduciary PTE 2020-02, Improving Investment Advice for Workers & Retirees, which became effective on Feb. 16, when recommending rollovers, "advisors need to focus on the needs and circumstances of the participant, and then evaluate the investments, services and expenses of the plan versus the IRA," Reish said.
Reish said that he's concerned some firms "may be looking for generalized reasons why rollovers might be good for a typical or hypothetical participant. But that is not what the rules say. Instead, PTE 2020-02 says that the recommendation must be based on the financial circumstances, risk tolerance, needs and investment objectives of the particular participant."
Then, beginning July 1, he continued, "the specific reasons for the rollover recommendation must be reduced to writing and provided to the participant."
Attorneys and regulators, Reish said, "will undoubtedly look at the written reasons after the fact and see if they reflected the needs and circumstances of that participant."
In its frequently asked questions guidance on the PTE, Labor also says that it is still planning a new rule to define what constitutes fiduciary advice.
