The Department of Labor (DOL) Rollover Opinion, issued in 2005, was intended to curb potential abuses associated with cross-selling and capturing rollovers. This guidance suggests that any rollover-related advice from the adviser will trigger a prohibited transaction under the Employee Retirement Income Act (ERISA), if the adviser already provides fiduciary advice to the plan client, said Charlie Epstein, founder of the 401K Coach.
This is a concern for all advisers, Epstein said, since the test for determining whether an adviser is a fiduciary for ERISA purposes is a functional one. Any adviser that provides “accidental” plan fiduciary advice will also be subject to the restrictions described in the DOL Rollover Opinion.
Fiduciary and non-fiduciary advisers are unsure about handling rollover business, and there is confusion throughout the industry, according to Epstein. “Advisers are prevented from providing ongoing sage and skillful advice to participants seeking this professional assistance at their distribution eligibility,” he said.
The 401k Coach Fiduciary Advisor’s Rollover Toolkit offers what Epstein calls a bypass to the Rollover Opinion to make sure advisers provide rollover services in a non-fiduciary capacity and that the process is documented accurately.
Marcia Wagner, managing director of The Wagner Law Group, collaborated on the creation of the toolkit. She has expertise in ERISA and employee benefit issues, including qualified and nonqualified plans. “We analyzed the DOL’s Rollover Opinion and the underlying Supreme Court case on which it was based, and created important documents to help advisers,” Wagner said.
The toolkit contains a white paper, procedural checklist and other supporting documents for advisers to successfully provide rollover services in an integral and non-fiduciary capacity. Also included is an audio interview of Epstein and Wagner discussing the background on ERISA’s prohibited transaction ruling, the DOL Rollover Opinion, impact on advisers and how they can implement a prudent process for rollover services.
Epstein and Wagner will host a free 45-minute webcast on the topic on Tuesday, October 9, at 1 pm Eastern Time.
More information about the Fiduciary Advisor’s Rollover Toolkit is at www.the401kcoach.com