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The Ethics Of Lending: Examining Responsibility In Student Loan Offerings – A fiduciary is a person or organization that acts on behalf of another person or persons, putting the interests of their clients ahead of their own, with a duty of good faith and trust. Being a fiduciary therefore requires that you are legally and ethically bound to act in the best interests of another.
A fiduciary may be responsible for the general welfare of another (eg, a child’s legal guardian), but the task often involves finances — for example, managing the assets of another person or group of people. Money managers, financial advisors, bankers, insurance agents, accountants, executors, board members and corporate officers all have a fiduciary responsibility.
The Ethics Of Lending: Examining Responsibility In Student Loan Offerings
Fiduciary responsibilities and duties are both ethical and legal. When a party knowingly accepts a fiduciary duty on behalf of another party, it is required to act in the best interests of the principal (ie, the client or the party whose assets it manages). This is what is known as the “prudent person standard of care,” a standard originally derived from an 1830 court ruling.
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This formulation of the prudent person rule required that the person acting as a fiduciary must act primarily with the needs of the beneficiary in mind. Strict care must be taken to ensure that no conflict of interest arises between the fiduciary and his principal.
In many cases, no profit can be made from the relationship unless express consent is given when the relationship begins. For example, in the United Kingdom, fiduciaries cannot profit from their position, as ruled by the English High Court,
(1726). If the principal consents, then the fiduciary may retain any benefit received; these benefits can be either monetary or more broadly defined as ‘opportunity’.
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Fiduciary negligence is a form of professional malpractice when a person fails to honor their fiduciary duties and responsibilities.
Estate arrangements and implemented trusts involve both a trustee and a beneficiary. The individual named as trustee or trustee of the estate is the fiduciary and the beneficiary is the principal. Under the trustee/beneficiary duty, the fiduciary has legal title to the property or assets and has the power necessary to handle the assets held on behalf of the trust. In property law, an administrator can also be known as an executor.
Keep in mind that the trustee must make decisions that are in the best interest of the beneficiary, as the latter has equitable ownership of the property. The trustee/beneficiary relationship is an important aspect of comprehensive estate planning, and special attention should be paid to determining who is appointed as trustee.
Politicians often set up blind funds to avoid real or perceived conflict of interest scandals. A blind trust is a relationship in which the trustee is in charge of the entire investment of the corpus (assets) of the beneficiary, without the beneficiary knowing how the corpus is invested. Even without the beneficiary’s knowledge, the trustee has a fiduciary duty to invest the corpus in accordance with the standard of conduct of a reasonable person.
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Corporate directors may have a similar fiduciary duty, as they may be considered trustees for shareholders if they are on the board of a corporation, or trustees for depositors if they serve as a director of a bank. Specific duties include the following:
Duty of care refers to the way the board makes decisions that affect the future of the business. The board has a duty to fully examine all possible decisions and how they may affect the business. For example, if the board is voting to select a new chief executive officer (CEO), the decision should not be made solely on the basis of the board’s knowledge or opinion of one possible candidate; it is the board’s responsibility to investigate all viable candidates to ensure that the best person for the job is selected.
Even after reasonably examining all the options before it, the board has a responsibility to choose the option it believes best serves the interests of the company and its shareholders.
The duty of loyalty means that the board is required not to place any other reasons, interests or connections above its loyalty to the company and the company’s investors. Board members must refrain from personal or professional affairs that may place their own interest or the interest of another person or business above the interests of the company.
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If it is determined that a member of the board of directors has violated his fiduciary duty, he may be held liable by the company itself or its shareholders.
Contrary to popular belief, there is no legal mandate that a corporation is required to maximize shareholder returns.
Fiduciary activities can also be applied to specific or one-time transactions. For example, a fiduciary deed is used to transfer property rights in a sale when the fiduciary must act as the executor of the sale on behalf of the property owner. A fiduciary deed is useful when the owner of the property wants to sell, but is unable to manage his affairs due to illness, incapacity or other circumstances, and needs someone to act for him.
The fiduciary is obliged by law to disclose to the potential buyer the true condition of the property being sold, and he cannot receive any financial benefit from the sale. A fiduciary document is also useful when the property owner has passed away and his property is part of the estate to be overseen or managed.
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In the guardian/wards relationship, the legal guardianship of a minor is transferred to a named adult. As a fiduciary, the guardian is tasked with ensuring that the minor child or ward has appropriate care, which may include deciding where the minor attends school, whether the minor has appropriate medical care, is disciplined in a reasonable manner, and that their day-to-day well-being remains intact.
A guardian is appointed by a state court when the natural guardian of a minor child is no longer able to care for the child. In most states, the guardian/ward relationship remains intact until the minor child reaches the age of majority.
The lawyer/client fiduciary relationship is undoubtedly one of the strictest. The U.S. Supreme Court states that the highest level of trust and confidence must exist between attorney and client—and that the attorney, as fiduciary, must act with complete honesty, loyalty, and fidelity in all representation and dealings with clients.
Lawyers are liable for breaches of their fiduciary duties by a client and are liable to the court in which that client is represented when the breach occurs.
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A more general example of fiduciary duty lies in the principal/agent relationship. Any individual, corporation, partnership or government agency can act as a principal or agent as long as the person or business has the legal capacity to do so. Under the principal/agent duty, the agent is legally appointed to act on behalf of the principal without conflict of interest.
A common example of a principal/agent relationship that implies a fiduciary duty is a group of shareholders as principals who select management or C-suite individuals to act as agents. Similarly, investors act as principals when they choose investment fund managers as asset management agents.
Although it may appear that an investment fiduciary would be a financial professional (money manager, banker, etc.), an investment fiduciary is actually any
This means that if you have volunteered to sit on the investment committee of the board of your local charity or other organization, you have a fiduciary responsibility. You have been placed in a position of trust and there may be consequences for betraying that trust. Also, the engagement of finance or investment experts does not release the committee members from all their duties. They still have an obligation to carefully select and monitor the activities of experts.
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Broker-dealers, who are often compensated by commission, generally only have to meet the eligibility requirement. This is defined as providing recommendations that are in line with the needs and preferences of the core user. Broker-dealers are regulated by the Financial Industry Regulatory Authority (FINRA) under standards that require them to make appropriate recommendations to their clients.
Rather than placing their own interests below those of the client, the suitability standard merely states that the broker-dealer must reasonably believe that any recommendations are appropriate for the client, in terms of the client’s financial needs, goals and unique circumstances. A key loyalty distinction is also important: a broker’s primary duty is to their employer, the broker-dealer for whom they work, and not to their clients.
Other descriptions of suitability include ensuring that transaction costs are not excessive and that their recommendations are not inappropriate for the client. Examples that may violate suitability include excessive trading, dropping accounts simply to generate more commissions, and frequently changing account funds to generate transaction income for the broker-dealer.
Also, the need to disclose a potential conflict of interest is not such a strict requirement for brokers – the investment just has to be appropriate; it may not necessarily be in line with the goals and profile of the individual investor.
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The eligibility standard may end
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