Money Management (September 29, 2011)

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Print Post Approved PP255003/00299

Vol.25 No.37 | September 29, 2011 | $6.95 INC GST

The publication for the personal investment professional

www.moneymanagement.com.au

STRONGER SUPER: Page 7 | ESTATE PLANNING - THE NEXT GENERATION: Page 14

FOS ‘swimming in the dark’ By Tim Stewart WHEN the “best interests” duties contained in the Future of Financial Advice (FOFA) reforms become law, the lack of a legal precedent will see the Financial Ombudsman Service (FOS) effectively “swimming in the dark”, according to Argyle Lawyers principal Peter Bobbin. In practical terms, court cases “predict the past” because they are based on events that happen three to four years before the judge makes a decision, he said. “What FOFA will do is create a skeletal frame. It’s not until the issues actually come before the courts that we’ll get the ‘meat’. So FOS will be swimming in the dark for at least three to four years,” Bobbin said. FOS will still attempt to apply FOFA in a proper legal manner, he added – it just won’t have any guidance to do so. Minter Ellison partner Maged

FOFA will create more hurdles that a planner has to take in defending a claim before they can even start to argue about the other concept of ‘fairness’. - Maged Girgis

Peter Bobbin Girgis said while FOS was not a court, and was guided by a “fairness” principle rather than the strict letter of the law, it still had to operate within the framework of the legal system. “On c e yo u n a r row t h a t

framework down – so that a planner needs to have done certain things – it would be easier to find, I suspect, that if the person hasn’t done one of those things then that would be sufficient [for FOS to find in the complainant’s favour],” Girgis said. There are two separate duties in the FOFA draft legislation: the duty to act in the best interests of the client, and the duty to give priority to the interests of the client before those of the licensee. On top of that, there

Planners must highlight claim-time help By Mike Taylor

KEY differences between group and retail risk insurance arrangements make it imperative that financial planners sell not only the value of their initial advice but the importance of their assistance at claim time, according to expert risk consultant, Col Fullagar. Fullagar has driven home both the value of advice and the value of follow-up assistance in the event of a claim in a column in this week’s Money Management in which he actively examines the circumstances of a client who wanted advice regarding a group insurance product with a premium of $400 and a retail product with a premium of $1,200. Utilising the real life experience of the client, Fullagar found a range of key differences between the group and retail products not only go some way to justifying the higher retail premium but also highlight the need for people to

Col Fullagar be appropriately advised. “I did not set out to determine which product was better. What I set out to do was determine to what degree the client needed to be appropriately informed,” he said. Fullagar said that what became Continued on page 3

are 12 steps that planners must take before giving advice. “[FOFA will] create more hurdles that a planner has to take in defending a claim before they can even start to argue about the other concept of ‘fairness’,” Girgis said. One big complaint from planners in the past has been that there is no avenue for them to appeal a FOS decision. But Bobbin said it was possible to appeal to the Federal Court on a “legal jurisdictional issue”. “I would anticipate in the

early days of FOFA there may ver y well be a few appeals. Because no-one – not even FOS – knows what ‘best interests’ means,” Bobbin said. Australian Financial Services head of compliance Michael Butler said the 12 steps contained in the FOFA draft legislation would see the industry going back to the days of “ticking a box” and moving away from focusing on the individual needs of the client. “That’s the fear of most people – that it’s going to end up being totally process driven,” he said. Association of Financial Planners chief executive Richard Klipin said the FOFA regime and the best interests duty currently in the draft legislation would create more avenues for litigation. “It will be a new world. There will need to be common sense prevailing and guidance from the regulator,” Klipin said.

Some planners in the dark on research models By Chris Kennedy A significant proportion of advisers are unaware of the business model of their research providers, a Money Management survey suggests. Almost a quarter of the nearly 100 planners responding to an online survey were unsure whether or not their research provider accepted payments from fund managers, while the survey also showed that planners overall were confident of the quality of investment research across the industry. Asked to select all research providers they used, half said they used van Eyk in some capacity, a third used Lonsec, one quarter used Morningstar, one fifth used Standard & Poor’s, and one fifth used Zenith. One in six also used internal research and a smaller number used Mercer and other providers. Lonsec head of research Amanda Gillespie said it wasn’t necessarily surprising that

many weren’t aware of their research provider’s business model. “It suggests to me that they’re focusing on other aspects of the service that their research provides rather than necessarily focusing on the business model,” she said. “To some degree the decision about research providers is made at the head office level in many instances. In that regard the advisers are less involved in that process,” she added. Standard & Poor’s head of research, fund services, Leanne Milton, said it may also indicate that these decisions are taken at the dealer group level. Zenith national sales manager John Nicoll agreed that dealers’ lack of awareness wasn’t surprising, but added it was vital that advisers really query researchers on their payment methods. However Mark Thomas, chief executive of van Eyk Research, said the situation may indicate a lack of disclo-

sure, because planners do not have to disclose to clients the business model of their research provider. If planners had to disclose to clients when research was paid for by the funds that were being researched, the clients may have an issue with it, he said. van Eyk, which also derives income from an in-house funds management arm, has to disclose in its reports whether it has holdings in the funds it recommends, he added. Morningstar co-head of funds research Tim Murphy said he was not surprised that one in five planners were unaware of their research providers’ business model. He said he would have expected the figure to be higher, but added that more and more people are taking notice of business models as there is a growing focus on conflicts of interest within the industry. Continued on page 3


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