What Is A Fiduciary?

According to ERISA, a person is a plan fiduciary if he or she:

Exercises any discretionary authority or control with respect to plan management or the disposition of the plan’s assets.

Renders investment advice for a feeor has authority to do so.

Has discretionary authority with respect to plan administration.

At the Professional Liability Underwriting Society Employment & Fiduciary Issues Symposium in April, Robert Christenson, a partner in the Atlanta office of Fisher & Phillips, highlighted the importance of the first part of the definition, noting that a person becomes a fiduciary by “simply exercising authority or control.”

“That means even if I have not been appointed a fiduciary, if I extort some money, if I do something where essentially I’m exercising control, even if I’m not authorized to do that, I’ve become a fiduciary as far as ERISA is concerned,” he explained. “So ERISA doesn’t require a fiduciary to be named. It’s really a function of what am I doing in connection with the plan, right or wrong,” he said.

Susanne Sclafane


Reproduced from National Underwriter Edition, September 16, 2004. Copyright 2004 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.




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