Much has been written about the obligations placed on financial advisors. Despite these bits of awareness created we still find that some advisors still cross the line of professional service and many clients are left in the dark as to what can be expected from their financial advisors.
Salvo Capital has come across a very detailed discussion on this topic by Bruce Cameron. This article appeared in Personal Finance on the 23rd of August – and it simply to important not to share in this Blog!
10 things your financial adviser should do
There’s plenty to celebrate in the new regulations introduced in terms of the Financial Advisory and Intermediary Services (FAIS) Act, which became fully effective on September 30, 2004. The main joy is that, for the first time, you have someone to whom you can turn if your financial adviser does not follow the correct procedures and gives you inappropriate advice.
You can complain to the Ombud for Financial Service Providers, and if your complaint is upheld, he can order that you be compensated.
In serious cases, the Financial Services Board (FSB) can withdraw the license of the offending adviser.
In a nutshell, the FAIS Act requires financial service providers (FSPs) to give you honest and fair advice that is in your interests. And they must give it with due skill, care and diligence.
To this end, advisers must:
1. Give you information about themselves
Within 30 days of appointing an adviser, he/she must give you the following information in writing:
• His/her full name.
• The name of his/her business. The business’s postal and physical addresses, its telephone number/s and internet and email addresses.
• His or her legal and contractual status, such as if he/she is independent or represents a company that supplies financial products.
If your adviser represents a company, you must be told which company, so you know which entity accepts responsibility for the advice you receive.
If your adviser is independent, the company that supplies the product/s you buy on the adviser’s recommendation takes no responsibility for the advice you are given. If you deal with a representative, the product supplier registered as the FSP takes responsibility for the advice.
• Whether or not your adviser has professional indemnity or fidelity insurance cover, in case you want to sue your adviser.
If a FSP has no fidelity insurance and you successfully sue for losses as a result of inappropriate advice, he/she may not have the money to pay you.
2. Tell you if they are registered with the FSB
In terms of the FAIS Act, there are two different types of financial adviser. Any person or organisation that provides you with financial advice is called an FSP. Anyone who provides you with financial advice while working for an FSP is called an FSP representative.
So, for example, if Joe Duggs is an independent financial adviser working on his own, he will be licensed with the FSB as an FSP, while an agent working for one of the big life assurance companies must be registered as an FSP representative. The FSP employing the FSP representative must ensure that all its representatives meet the requirements of the FAIS Act when they give advice and sell financial products.
All FSPs and FSP representatives providing advice must meet “fit and proper requirements”, which include minimum qualifications for providing you with advice and selling you certain products. For example, someone who meets only the minimum qualifications to sell you life assurance may not sell you, or give you advice on, products that are more complex.
At the top end of the advisory scale are discretionary FSPs, who must meet far tougher minimum qualifications before they can accept a mandate from you to make investment decisions on your behalf.
If your adviser is only licensed to sell funeral assurance, for example, you cannot expect him/her to provide proper investment advice. You will need to find another adviser with the appropriate qualifications and licence to give you investment advice.
An FSP must provide you with his/her licence number; an FSP representative must provide you with the licence number of his/her employer. You can check with the FSB whether your adviser is licensed.
3. Understand your financial status
Before giving you any advice, your adviser must get as much information from you about your financial situation, experience with financial products and financial objectives as is necessary for him/her to provide you with appropriate advice.
This includes information about your assets and your debts, your income and expenses, your obligations to dependants, your life and disability assurance and your financial goals, such as the education of children and retirement.
4. Conduct a financial needs analysis
Based on the information obtained from you, your adviser must analyse your financial situation before identifying the financial product/s that are appropriate to your risk profile and financial needs.
Your financial adviser should have a computer program that can assess all your financial needs, from life and disability assurance to retirement needs and investment goals.
If you do not provide all the information your adviser needs to conduct a proper financial needs analysis, or if he/she is unable to carry out a proper analysis for any other reason, your adviser must ensure that you “clearly understand” that:
• A full analysis was not done;
• As a result, there may be limitations on the appropriateness of the advice you have been given; and
• You should take “particular care” to consider whether or not the advice is appropriate considering your objectives, financial situation and needs.
Your adviser must take reasonable steps to ensure you understand the advice you receive and are in a position to make an informed decision.
Your adviser must warn you of any risks you are likely to incur if you decide to ignore his/her advice, take action that differs from his/her recommendations, or decide to accept more limited information or advice than your adviser is able to provide.
5. Give you factually correct and understandable advice
All advice and information given to you by your adviser must be:
• Factually correct;
• Provided in plain language, avoiding uncertainty and confusion, and not be misleading;
• Adequate and appropriate; and
• Provided timeously, giving you the opportunity to make an informed decision about any transaction.
The information must also include details of all costs. Many product suppliers already provide full details of costs so that advisers can pass them on to you, but others, particularly life assurance companies, present them in an incomprehensible way. The costs are often provided as a hodge-podge of fixed rand amounts and various percentages.
Although the FAIS Act does not specifically make provision for this, to ensure you understand the costs and how they will affect your returns, you should insist that costs are provided as a percentage of any investment amount and on what is called a reduced-yield basis. A reduced-yield calculation enables you to compare the amount you will receive when your investment matures in two ways: without the costs deducted and with all the costs, including commissions, deducted.
By getting the costs as both a percentage of the investment amount and on a reduced-yield basis, you ensure your adviser meets the requirement to provide you with information that is understandable.
6. Tell you all about the financial product/service
When your adviser gives you advice about a product, he/she must inform you of all the consequences and implications of buying that particular product. This information includes:
• A general explanation of the nature and material terms of the contract or transaction, disclosing any facts that can be reasonably expected to enable you to make an informed decision.
• Providing you with any illustrations, projections or forecasts about the product’s performance.
You must understand the difference between a projection and a guarantee. Projections of performance, such as those provided by life assurance companies, are very unlikely to be the actual rand amounts you will receive at maturity.
If you are offered a product with guarantees, they must be spelt out explicitly in writing. For example, are the guarantees on the capital or the returns or both? Are the guaranteed returns before or after costs have been deducted?
• Being given all the details about the product you are purchasing. This includes:
* The name, class or type of the product. For example, in the case of a unit trust fund, you should be told the name of the fund and in what sector or sectors the underlying investments are made, and which company provides the product.
* The nature and extent of benefits to be provided, including details of how the benefits will be paid out. For example, in the case of a life assurance policy, you must be told how and when your beneficiaries will receive the money.
The FAIS Act has special stipulations for the advice you must be given when you buy an investment product or a product that has any investment element. These requirements include being given details about:
• How the value of your investment is determined, including concise details of any underlying assets.
• All the charges and fees and, at your request, information about the past performance of the product over periods and at intervals that are reasonable considering the type of product involved. This information should include a warning that past performance does not necessarily indicate future performance.
• The nature and extent of the financial obligations – either directly or indirectly – you have towards the product supplier, including the manner of payment and the consequences of non-compliance.
You must be told about any penalties you could incur if you withdrew from, for example, a life assurance investment. Life assurance investments notoriously come with tough penalties for early termination of a policy, and you can end up getting back less money than you paid in.
• Details of any anticipated or contractual escalations, increases or additions to the investment. For example, you should be told about any automatic increases in recurring premium investments.
• Details of any special terms or conditions, exclusions of liability, waiting periods, loadings, penalties, excesses, restrictions or circumstances in which benefits will not be provided.
• Any guaranteed minimum benefits or other guarantees attached to the product.
• The extent to which the product is readily realisable or how easy it is for you to access the funds you have already invested.
• Any tax consequences.
• Details of cooling-off rights, which give you an opportunity to change your mind about making an investment, and the conditions under which you can exercise these rights.
• Any investment or other risks associated with the product.
However, the Act also places obligations on you. The most important of these is that you provide any information the adviser requires as accurately and completely as possible. This is your responsibility, not that of your adviser.
If your adviser completes or submits any transaction requirement on your behalf, you should be satisfied about its accuracy. Your adviser is not allowed to ask you to sign any written or printed form or document unless all the required details have been completed.
7. Inform you about product providers
When you buy a financial product, your adviser must give you in writing within 30 days:
• The name, physical location, and postal and telephone contact details of the product supplier;
• Details of the contractual relationship (if any) your adviser has with the product supplier, and of his/her contractual relationship/s (if any) with any other supplier/s;
• The names and contact details of the relevant compliance and complaints departments of the product supplier, in case you have any complaints; and
• The existence of any conditions or restrictions imposed on your adviser by the product supplier about the types of financial products or services your adviser may provide.
Your adviser must also tell you if he/she owns more than 10 percent of the product supplier’s shares.
You must also be told whether, during the preceding 12-month period, your adviser (if he/she is a FSP) or the company he/she represents (if he/she is a FSP representative) received more than 30 percent of his/her total remuneration, including commission, from the product supplier.
This information is important because some FSPs, such as bank brokerages, have close relationships with product suppliers, such as life assurers. These FSPs then tend to “push” the products of their associated company, rather than offer you the full range of products.
In addition, the FAIS Act states that your adviser “may not compare different financial products, product suppliers, providers or representatives, unless the differing characteristics of each are made clear, and may not make inaccurate, unfair or unsubstantiated criticisms of any financial product, product supplier, provider or representative”.
8. Inform you of the consequences of replacing financial products
A major problem in the financial services industry is the way many unscrupulous advisers advise people to unnecessarily replace one financial product with another. This is particularly common in the life assurance industry, where, perversely, commissions are paid upfront on recurring premium products, instead of being paid only when you make an investment, as in the unit trust industry. If you replace an existing policy with a new policy, you generate a new set of upfront commissions. Every year, investors lose millions of rands when they switch products.
The FAIS Act stipulates that, where a financial product will wholly or partially replace an existing product, you must be told the actual and potential financial implications, costs and consequences of making the switch. This includes full details of:
• All costs related to the replacement product;
• All the special terms and conditions that may apply to the replacement product, including exclusions of liability, waiting periods, loadings, penalties, excesses, restrictions and the circumstances in which benefits will not be provided;
• The impact of age and health changes on the premium, in the case of an insurance product;
• The tax implications of the replacement product and the terminated product;
• Material differences between the investment risks associated with the replacement product and the terminated product;
• Penalties or unrecovered expenses deductible or payable as a result of terminating a product;
• The difference between the products in terms of realising your investment or having access to your money; and
• Any vested rights, minimum guaranteed benefits or other guarantees or benefits that you will lose by terminating a product.
When you replace a long-term insurance contract or policy with any other financial product, your adviser must notify the issuer of the existing insurance policy of the impending termination, so that the issuer can check the advice on which you are basing your decision and also offer you advice.
9. Tell you how they will be paid
Your adviser must disclose details of all earnings he/she receives directly or indirectly from giving you advice or selling you a financial product, including any potential earnings that might lead to a conflict of interest.
One such conflict of interest is the practice of many financial services companies to provide incentives for advisers to sell a particular product, or a number of products, in bulk. For example, FSPs might be offered luxury, all-expenses-paid overseas trips for themselves and their partners if they sell Rx million-worth of the products of a particular company. In other words, you will be encouraged to purchase the product on the basis of the potential reward to the adviser, instead of what is in your best interests.
You must be told precisely the nature, extent and frequency of any incentive, remuneration, consideration, commission, fee or brokerage (“valuable consideration”) that will, or might, become payable to the provider, directly or indirectly.
Although the legislation does not prescribe this, it is in your best interests to discuss at your first meeting with your adviser precisely how he/she will be remunerated. You are entitled to – and should – negotiate commissions and fees. The best route is to negotiate payment based on an hourly rate rather than a percentage of your assets.
Your adviser may not deal in any financial product where the deal is based on advance knowledge of pending transactions on your behalf, or with you or other clients, or on any non-public information that, if disclosed, is likely to affect the price of a product.
10. Give you a record of advice
Your adviser must keep a record of:
• All the advice he/she gives you;
• All the information and material on which the advice was based;
• The financial products that were considered;
• The products that he/she recommended; and
• An explanation of why the products that were selected are likely to satisfy your needs and objectives.
You must be provided with a written copy of the record. The record must be in clear and readable print in terms of size, spacing and format.
It is a criminal offence for your adviser to disclose any confidential information obtained from you without your written consent, unless the information is required in the public interest or under any law.
[Salvo Capital would like to acknowledge and compliment the Author, Bruce Cameron, as well as the publication, Personal Finance, for making available this information to the public.]
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