When is a 'Fiduciary' Truly Acting as a Fiduciary?
The Department of Labor's fiduciary rule, which went into effect on June 9, aims to protect retirement investors from financial adviser conflicts of interest, but consumers still must watch out for themselves.


Much has been written about the new Department of Labor rule requiring most financial advisers be held to a “fiduciary” standard. Until the rule went into effect, a majority of financial advisers were legally held to a watered-down requirement requiring “suitability” of advice. Two questions come to mind:
- What is the difference between advice that meets the fiduciary standard and advice that’s merely suitable?
- How do I know if a fiduciary is truly acting as one?
The best way to explain the concepts is through examples. Frank is 65 years old, very conservative and concerned about stock market volatility. He owes $300,000 on his mortgage while paying interest at 4%. He has $400,000 in cash currently, $350,000 in an IRA account and wants to sell an older rental house for $300,000 with a potential income tax on the sale of $50,000.
A Broker/Dealer’s ‘Suitable’ Advice
First Frank seeks the advice of a broker held to the suitability standard. Sarah works for a very large national company based on Wall Street. She knows if she tells Frank to pay off his mortgage, she will lose potential business, and potentially her job. You see, since she is held only to a suitability standard, she owes her primary allegiance to the company she represents, not to the investor.

Sign up for Kiplinger’s Free E-Newsletters
Profit and prosper with the best of expert advice on investing, taxes, retirement, personal finance and more - straight to your e-mail.
Profit and prosper with the best of expert advice - straight to your e-mail.
Instead of recommending that Frank pay off his mortgage, she instead brings out graphs showing how the stock and bond market has performed historically in an attempt to convince this person how investing in the market will be better than paying off a mortgage in retirement. In the end, a lot of pressure is applied for Frank to invest the cash, the IRA and the rental property proceeds net of tax into stocks and bonds. Sarah would invest the $1 million into loaded mutual funds where Frank is charged $57,500 in commissions on the first day.
Fiduciary Advice from 2 RIAs with 2 Different Opinions
Next, Frank seeks the advice of two different Registered Investment Advisers (RIA) held to the fiduciary standard. The first RIA suggests the same advice he heard from Sarah, but would invest in no-load funds so that Frank can avoid paying the commission. The second RIA suggests paying off the mortgage, and investing the rest into stocks and bonds. In each of the three meetings, Frank brought up the fear of rising interest rates and questioned whether bonds were the best investment solution. Each adviser responded similarly, citing long-term historical bond performance statistics.
Do RIAs held to the same standard sometimes offer completely different advice? The answer to this question is absolutely yes. This fiduciary standard of care isn’t always consistently applied. One problem with this standard is that if you sell stocks and bonds for a living, you may be convinced everyone needs stocks and bonds. If you sell annuities and not stocks, you may tell the world about how horribly volatile the stock market is and talk them out of investing in stocks and bonds.
A Final Piece of Fiduciary Advice with a Different Take
What might a better fiduciary solution look like here? Frank sought out the advice of an RIA who was also a CPA. The first piece of advice was to pay off that mortgage. The second piece was to get a home equity line of credit in case of a liquidity emergency. As for the rental house, instead of paying the income tax on the sale, a tax-deferred 1031 exchange was decided upon, reinvesting into a professionally managed apartment complex. Finally, a mix of stocks and a fixed indexed annuity was recommended as a bond substitute.
Frank saved on income taxes, improved cash flow, and has better growth potential without significantly adding to overall portfolio risk.
The Final Word: My Take on the Fiduciary Rule
I’m generally happy about the new DOL rule and its attempt to raise the bar within my industry. However, I don’t think the new rule goes far enough. How can an adviser truly offer the best advice if they aren’t licensed in — and fully understand — stocks, bonds, passive real estate, insurance products and federal tax law implications?
In the end, financial planning advice is based on the opinion of your adviser. Opinions vary between advisers based upon what they are familiar with, their licensing and experience. Opinions cannot be easily measured or compared.
So, even with a new set of standards within the industry, it’s still up to the consumer to perform their own due diligence when selecting the best financial adviser for themselves.
Profit and prosper with the best of Kiplinger's advice on investing, taxes, retirement, personal finance and much more. Delivered daily. Enter your email in the box and click Sign Me Up.

Brian Evans, CPA/PFS is the owner of Madrona Financial Services and Bauer Evans CPAs, a well-known registered investment advisory practice and an accounting firm based out of Seattle, Washington. He serves as their Chief Executive Officer, lead Wealth Planner and Senior Portfolio Manager. Evans also hosts a weekly radio show and podcast, Growing Your Wealth, in Washington on KTTH, KIRO, KNWN and KVI, and on KNRS in Utah.
-
The $33,000 Retirement: One Man's Surprising Path to Financial Freedom at 61
Forget what society tells you, even with less than $1 million, you can be happy in retirement.
-
The Best Aerospace and Defense ETFs to Buy
The best aerospace and defense ETFs can help investors capitalize on higher government defense spending or hedge against the potential of a large-scale conflict.
-
Roth IRA Conversions in the Summer? Why Now May Be the Sweet Spot
Converting now would enable you to spread a possible tax hit over more than one payment while reducing future taxes.
-
A Financial Expert's Three Steps to Becoming Debt-Free (Even in This Economy)
If debt has you spiraling, now is the time to take a few common-sense steps to help knock it down and get it under control.
-
I'm an Insurance Expert: This Is How Your Insurance Protects You While You're on Vacation
Here are three key things to consider about your insurance (auto, property and health) when traveling within the U.S., including coverage for rental cars, personal belongings and medical emergencies.
-
Investing Professionals Agree: Discipline Beats Drama Right Now
Big portfolio adjustments can do more harm than good. Financial experts suggest making thoughtful, strategic moves that fit your long-term goals.
-
'Doing Something' Because of Volatility Can Hurt You: Portfolio Manager Recommends Doing This Instead
Yes, it's hard, but if you tune out the siren song of high-flying sectors, resist acting on impulse and focus on your goals, you and your portfolio could be much better off.
-
Social Security's First Beneficiary Lived to Be 100: Will You?
Ida May Fuller, Social Security's first beneficiary, retired in 1939 and died in 1975. Today, we should all be planning for a retirement that's as long as Ida's.
-
An Investment Strategist Demystifies Direct Indexing: Is It for You?
You've heard of mutual funds and ETFs, but direct indexing may be a new concept ... one that could offer greater flexibility and possible tax savings.
-
Q2 2025 Post-Mortem: Rebound, Risks and Generational Shifts
As the third quarter gets underway, here are some takeaways from the market's second-quarter performance to consider as you make investment decisions.