Behavioral Governance is about improving the decision-making process we employ when we have the responsibility—the awesome responsibility—of serving as a fiduciary. It’s about the journey, the destination, and our leadership and stewardship roles along the way.
We have taken an integrated approach to bind decision-making dimensions with leadership and stewardship behaviors in order to define a fiduciary standard that is higher than what is required by regulations.
Behavioral Governance is intended to suggest a new way of thinking about your role as a fiduciary. Whether you are:
- Serving as a financial planner, wealth manager, or retirement advisor;
- Serving in the role of broker/agent, steward, or fiduciary;
- Managing retail- or institutional-size portfolios;
- Advising individual investors, private trusts, foundations, endowments, or retirement plans;
- Based in the U.S. or in New Zealand.
Though the concepts of leadership and stewardship are something we all should understand, headlines continue to be filled with stories of fiduciary breaches. Even well-informed and well-intentioned investment advisors struggle with the juxtaposition of their responsibilities against an increasingly complex and conflicted world.
Your effectiveness as a fiduciary will be evaluated against a process standard—can you demonstrate the process that you followed to prudently manage your investment decisions. If you provide clients comprehensive and continuous advice, you will need to demonstrate that you are following a procedurally prudent process that is based on:
- Industry best practices;
- Best interests of the client; and
- Generally accepted investment principles.
Superior investment returns are the result of developing a prudent process or strategy, and then adhering to it. Only by following a structured process can you be certain that all critical components of an investment strategy are being properly implemented.
Your role as a fiduciary is to maximize the benefit to be gained from the process—that is to maximize the likelihood of your clients achieving their goals and objectives. It will be your actions as the manager of the decision-making process that will have the greatest impact on your clients’ investment success.
The decision-making process outlined in the Behavioral Governance framework incorporates modern investment theory as well as elements from case law, regulations, and legislation that impact investment decision-makers. It represents governance techniques that we have personally witnessed for more than thirty years being employed by some of the largest and most sophisticated investors in the world.
The Behavioral Governance framework describes a decision-making process that provides clear guidance to practical, readily identifiable, and easily adaptable steps. The process is virtually the same for all types of portfolios, regardless of asset size or intended use. While the process discussed will not guarantee investment success, it will significantly increase the odds of building and structuring an investment portfolio that will withstand the test of private and public scrutiny.
The intelligent and prudent management of investment decisions requires that you maintain a rational, consistent decision-making process. You can accomplish the lion share of your clients’ investment goals and objectives by implementing a simple decision-making process, such as the one defined by the Behavioral Governance framework.
Complaints and/or lawsuits alleging misconduct are likely to increase as investment strategies become more complex, and our capital markets become more volatile. However, contrary to popular opinion, liability generally is not determined by investment performance, but by whether a prudent process was followed.
It’s not whether you win or lose; it’s whether you can demonstrate how you played the game.
As a practical matter, a comprehensive framework is needed to ensure that your process is fully and effectively addressed on an ongoing basis. Most investment litigation involves the omission of certain practices and/or prudent investment procedure, as opposed to the commission of certain acts.
The Behavioral Governance framework incorporates a “checklist” process to help ensure that your investment decisions are prudently managed. However, we caution you not to fall into a “checklist mentality”—putting a checkmark in the “box” without fully investigating the appropriateness or completeness of a procedure.
As a fiduciary, you know that you’re highly regulated. It would seem that almost every decision that could be made comes complete with its own set of rules and regulations. Regulations are a necessary feature, and can be constructive (as are checklists); but regulations (and checklists) alone will never fully inform you of your duties and responsibilities.
Investment decisions should never be managed in isolation or in a vacuum. All factors that may have a bearing on investment decisions should be identified, analyzed, and integrated into the process; particularly the determination of the client’s goals and objectives.
As with the running of any business, definitive objectives must be established. Here you and the client play a key leadership role in defining the objectives that are realistic and consistent with the client’s current and future resources, and with the client’s values and priorities.
It is essential that you determine the legal character or ownership of the client’s investable assets, which reveals quite a bit about what is and isn’t permissible or appropriate among potential asset classes or investment strategies. For example, if the client is a retirement plan, there are very specific limitations on whether the plan can invest in the sponsor’s own stock, or in real estate being used by the plan sponsor.
If the client is an “institution”—the retirement plan of a corporation, or the assets of a foundation or endowment, additional information should be collected and analyzed:
- Organizational mission, values, culture/norms statements, and strategic plans;
- Descriptions of the organization’s history including people, growth, acquisitions, etc; and
- Policy and procedures manuals, corporate minutes, and any other files pertaining to the management of the investable assets.
Particular attention should be paid to documents which: identify trustees and named fiduciaries (Dimension 1.1); restrict or prohibit certain asset classes (Dimension 2.1); or allow for investment decisions to be prudently delegated (Dimension 4.1).
It is necessary that you obtain a complete understanding of the client’s current financial position, legal and regulatory constraints, current service providers and professional advisors. This understanding is obtained from an in-depth analysis of the current facts and circumstances pertaining to the funds to be invested.
The outcome of the analysis should be the establishment of the client’s strategic long-term goals and objectives—the client’s tactical, short-term performance expectations will be identified in Dimension 2.2. Long-term strategic objectives:
- Need to align with the client’s financial resources;
- Must be within the limits and constraints of any applicable regulations and statutes; and
- Should be periodically assessed in light of current results and future trends (Step 5).
An inquiry also should be made as to whether the client desires to incorporate impact investing —related terms you may hear include:
- Socially responsible investing
- Mission-based investing
- ESG (environmental, social, and corporate governance)
- Sustainable investing
- ETI (economically targeted investing).
In general terms, impact investing seeks to align the client’s values with the investment portfolio. The social investor looks beyond a stock price to consider how the company serves society as a whole. However, the type of client will have implications on the types of impact investing that can be employed.
- ERISA plans only can state that impact investing is a secondary objective: the primary stated objective must be the prudent management of the plan in the best interests of participants.
- Foundations and endowments may actually breach their fiduciary duties if they don’t consider impact investing. For a traditional unconstrained strategy may be inconsistent with the mission of the charitable institution.
- Trustees of personal and charitable trusts may be in breach of their fiduciary duties if trust documents specify the inclusion or exclusion of impact investing, and such direction is not taken into consideration.
You should file in a centralized location all of the documents pertaining to the development of the client’s goals and objectives:
- Investment policy statements (IPS);
- Applicable trust documents (including amendments);
- Custodial and brokerage statements so that current fees and expenses for investment management can be analyzed;
- Service agreements with investment management vendors (custodians, money managers, investment consultant, actuary, accountant, or attorney);
- Information on retained money managers, such as in a prospectus or similar documents; and
- Any other files pertaining to the management of the client’s portfolio.