Chances are,
you are over 65, have a loved one over the age of 65, or both. Financial
services firms are targeting older Americans because of the tremendous
opportunity they represent for these firms. Older Americans control record
amounts of wealth in the United States and where there is bait, there will be
sharks.
Regulators
are particularly concerned about predatory practices aimed at seniors. These
practices fall into four broad categories:
- Recommending products
or services that are not appropriate given the person's individual
situation;
- The use of false
designations which imply special expertise in retirement and senior
issues;
- High-pressure sales
seminars aimed at seniors;
- Diminished capacity
and the financial abuse of seniors by caregivers.
Suitability
Regulations
require brokers and registered financial advisors to always place the customers
best interest ahead of their own. Before recommending “the purchase, sale or
exchange of any security, a member shall have reasonable grounds for believing
that the recommendation is suitable” for that customer, based on “the facts, if
any, disclosed by such customer as to his other security holdings and as to his
financial situation and needs.”
Unfortunately,
financial advisors often ignore this rule by selling products inappropriate for
the customer because they pay a high commission. The Financial Industry
Regulatory Authority (FINRA) is the largest non-governmental regulatory agency
for securities firms doing business in the United States. FINRA's examiners
have been focusing specifically on recommendations to seniors that involve:
- Products that have
withdrawal penalties or otherwise lack liquidity, such as deferred
variable annuities, equity indexed annuities, some real estate investments
and limited partnerships;
- Variable life
settlements;
- Complex structured
products, such as collateralized debt obligations (CDOs);
- Mortgaging home equity
for investment purposes; and
- Using retirement
savings, including early withdrawals from IRAs, to invest in high risk
investments.
FINRA has
repeatedly stated that variable annuities are generally considered to be
long-term investments and are therefore typically not suitable for investors
who have short-term investment horizons, like seniors. FINRA has stated in
various regulatory bulletins, that this is true even of some variable annuities
that offer riders specifically designed for seniors, including those offering
guaranteed life benefits.
FINRA has
also held forth on the lack of suitability of variable life settlements, which
are often improperly aimed at investors over the age of 70; and taking out home
equity for investment purposes. FINRA also warns against recommendations that
investors use retirement savings, in some cases by making early withdrawals
from IRAs pursuant to Section 72(t) of the Internal Revenue Code, to make
unsuitable alternative investments.
In spite of
these rulings, I continue to see these investments being sold to seniors. You
don't have to dig hard to find them either. I hear stories from my clients
every day. If you or your loved one is
over the age of 65 and an advisor recommends any of these products or
strategies to you, chances are, he or she is taking advantage of you. I admit
there are exceptions but they are extremely rare.
Misleading Credentials
Several state
securities regulators have adopted rules aimed at protecting older investors
from misleading professional designations and credentials. In Massachusetts,
for example, new regulations govern use of credentials and professional
designations that use words such as "senior," "retirement"
and "elder" in combination with words such as "certified,"
"advisor" and "specialist" to imply an expertise in
advising senior investors. Most regulatory agencies, government and
non-government alike, consider anyone 65 years of age or older
"senior." Nebraska and Washington have followed suit.
This was
necessary because there has been a rash of these designations that have sprung
up over recent years with little or no transparency as to what they actually
mean. In fact, the largest of these, The Society of Certified Senior Advisors,
which offers the "certified senior advisor" designation, will begin
requiring its CSA's to disclose that they may have no particular expertise when
it comes to financial issues affecting seniors.
Beginning
June 1, financial advisors in Massachusetts, can use only senior designations
that have been accredited by a national accrediting agency. Nebraska maintains
a list of "approved" designations. The North American Securities
Administrators Association (NASAA), which represents state securities
regulators, plans to develop similar guidelines by the end of the year and
recommend their adoption to other states.
Similarly,
FINRA found that some third-party vendors are marketing ghostwritten books on
senior investing to registered representatives as tools to establish
credibility. Basically, the advisor buys the book and then puts their name on
it as the author.
Rules, such
as NASD Rule 2210 and NYSE 472 prohibit firms and registered representatives
from making "false, exaggerated, unwarranted or misleading statements or
claims in communications with the public". So does the Investment Advisor
Act, a federal law. FINRA has stated that representing yourself as an author of
a book you didn't write, to confer some level of expertise you don't really
have, is misleading and may violate state and federal law.
High pressure sales seminars
Many
financial services firms, including ours, use sales seminars. But regulators
are particularly concerned right now about the so-called "free-lunch
seminars" that target seniors.
SEC
Chairman Christopher Cox said the agency is scrutinizing brokers and advisers
who conduct meetings over free meals at "fancy hotels and
restaurants." The effort will begin in Florida in the coming weeks, Cox
said today at a conference in Washington hosted by the Consumer Federation of
America.
"If
we find that instead of a legitimate sales seminar and a free meal, seniors are
being exposed to pitches for unsuitable products, with high-pressure sales
tactics and wild claims about projected returns, and no disclosure of the
actual risks of the investment, we'll move in hard and fast," Cox said.
The
initiative is part of "a comprehensive national strategy for protecting
older investors" that is being carried out by SEC field offices, state and
local regulators and law enforcement, said Cox, 53. NASD enforcement chief
James Shorris, named to the post yesterday, said his agency will also make
protecting elderly investors a priority.
I have to
admit, some of the findings of this sweep are scary to a legitimate firm like
ours because it is difficult to tell the difference. For example, a Yahoo
article says:
While
their promoters paint the "free lunch" seminars as educational
sessions, sometimes promising that nothing will be sold, "they are
designed to sell — either at the seminar itself or later," said Lori
Richards, director of the SEC's Office of Compliance Inspections and
Examinations. "They're not educational events."
The
investigation conducted by the SEC, state regulators and FINRA found the use of
scare tactics to get seniors to question their current investments, claims of
fantastic returns with no risk, and "ringers" in the audience who
would stand up and offer testimonials of how much they had earned.
For one, we
don't target seniors - our demographics mirror the general population. But as
the number of seniors in the population increases, so will the number of
seniors served by us. It seems that we must now err on the side of caution to
avoid being painted with the same brush - probably not a bad idea anyway.
We have
called our free sales events, "educational seminars" but we have
never said we aren't selling anything because we obviously are. The sub-title
of our events is "An introduction cash flow investing and the Snider
Investment Method™." What we do say is you won't be subjected to a
high-pressure sales pitch, which you won't. We try to respectfully give you the
facts and then leave you alone.
But while we
don't try to get anyone to sign up on the spot, we do sometimes offer a
discount if you sign up for a paid workshop within seven days. When our classes
are not full, encouraging someone to sign up for an earlier class seems like a
wise business decision. Is that high pressure? I'd like to hear your thoughts.
The one that
really sets my teeth on edge is the one about the "ringers" in the
audience. This should really make some of our students who routinely show up to
talk with others pretty mad. We have never, ever paid someone for their
testimonial. Anyone who shows up at our marketing events is a client who paid
to learn the Snider Investment Method™, is using it, and wants to tell others.
They get nothing in return.
The last
information session we did in Frisco, there was a woman in the audience who I
didn't even recognize as being one of our graduates. During the Q&A, she
asked me if she could stand up and tell her story. I didn't ask her to be
there. I didn't ask her to stand up. She just did - and I appreciated it. I am
grateful to know that what I taught her made a meaningful difference in the
quality of her life.
I know some
firms may use shills or "ringers." I don't know how they sleep at
night, but I know they do. So how does someone differentiate between a
legitimate customer who is there because they really believe in the product and
a shill? How does someone distinguish between a legitimate firm using a seminar
to sell a legitimate product to people for whom it is appropriate from a sleaze
ball who doesn't care about anything other than generating the highest possible
commission? Again, I'd like to know your thoughts. You can leave them in the
comments below.
At the end of
the day, I guess that is the regulator's concern as well. So from my
perspective, and that of any other legitimate firm who wants to use seminars to
educate potential customers about their products or services, we should be
thankful the regulators are trying to clean this area up. If successful,
attendees can feel confident the material being presented is accurate and they
will not be subjected to any high-pressure sales pitch.
My very real
concern though, is that in the process, some legitimate firms like ours may get
painted with the same, very broad brush.
Diminished Mental Capacity and Suspected Financial Abuse
The last
issue regulators are concerned about is diminished capacity and financial abuse
by caregivers. This is obviously a non-regulatory issue and has nothing to do
with a firm like ours - except that we have the potential to spot it and take
actions to protect the client.
What can you
do?
The first
thing is to make sure you or any family members have a will, a living will and
a durable power of attorney in case of incapacity. That will save you from
going through the court system if a loved one loses the mental capacity to make
decisions.
The second is
to begin a dialog with aging family members about their financial situation as
early as possible. Don't wait until the last minute. A conversation now about
whether your parents have long-term care insurance, for example, may lead them
to let you in more on their finances as you go along.
Third, offer
to accompany them on appointments with financial advisors - especially if you
have any doubts about their capacity to make sound financial decisions. The
elderly are much more susceptible to fraud or just being taken advantage of.
Finally,
educate yourself on financial matters. You not only need it to protect
yourself, but you may also need it to protect those who once protected you.
SOURCES
(direct quotes are indented):
1. Financial
Industry Regulatory Authority. "Seniors" Regulatory Notice 07-43 September, 2007.
http://www.finra.org/RulesRegulation/NoticestoMembers/2007NoticestoMembers/P036815
2. "Mass limits use of senior
credentials"; Boston Globe;
May 17, 2007.
http://www.boston.com/business/ticker/2007/05/mass_limits_use.html
3. "States re-evaluating who should be licensed"; Financial Advisor; September, 2007.
http://fa-mag.com/issues.php?id_content=2&idIssue=125&show=fronline
4. Annys Shin. "SEC targets free-lunch
scams"; WashingtonPost.com;
March 24, 2006.
http://blog.washingtonpost.com/thecheckout/2006/03/sec_targets_free_lunch_scams.html
5. Marcey Gordon. "Free lunch seminars
can entrap seniors"; Associated
Press; September 10, 2007.
http://www.boston.com/business/ticker/2007/05/mass_limits_use.html
2. Bruce Fraser. "Role Reversal"; Financial Advisor; September, 2007.
http://fa-mag.com/issues.php?id_content=2&idArticle=1568
Kim Snider, Kim Snider Financial Communications, Chronim Investments
and/or Snider Advisors make no representation that the information and opinions
expressed are accurate, complete or current. The opinions expressed should not
be construed as financial, legal, tax, or other advice and are provided for
informational purposes only. Call 866-952-0100 to request the Snider
Investment Method™ Owner's Manual, which includes a description of the
Snider Investment Method, investment objectives, risks, suitability and other
information. Please read and consider carefully before investing. All
investments are subject to risk including possible loss of principal.