Over the past several years, the financial services industry has undergone a tremendous evolution in how financial advisers deliver and charge for their services. While commission-based models remain in use, fee-for-service models (including AUM, hourly, retainer, and subscription) have become increasingly popular. And because many service offerings have traditionally focused on areas like investments and securities recommendations, there has been little debate about the need to register as an advisor. However, the more recent rise of financial coaching models has introduced complexity, particularly for those offering advice on financial topics adjacent to investments where the need to register as investment advisers with the SEC or state securities authorities isn’t always obvious.
In this guest post, Chris Stanley, investment management attorney and Founding Principal of Beach Street Legal, explores the specific conditions under which a financial coach must register as an investment adviser. He introduces the “ABCS Test”, a mnemonic designed to help financial coaches and advisors grasp the fundamental elements that define an investment adviser.
According to the Investment Advisers Act of 1940, anyone in the business of rendering advice about securities for compensation is, absent an exclusion or exemption, required to register as an investment adviser. Thus, Advice, Business, Compensation, and Securities (ABCS) are the key elements in this definition. Notably, while many financial coaches satisfy the majority of these requirements – they are in the business of offering advice to clients and are compensated as such – they often steer clear of making specific securities recommendations, focusing instead on areas like budgeting, debt management, savings, and retirement planning.
Nevertheless, the ‘securities’ component of the definition has several nuanced exceptions. Financial coaches can address topics such as real estate, commodities futures, non-variable insurance, and government securities (none of which are included in the Investment Advisers Act’s definition of a security), offer non-specific advice about investments to a general audience, and even obtain industry designations (like the CFP marks) without the need to register as an investment adviser. But once a financial coach addresses specific questions from clients around actual securities (e.g., how they should invest their savings or why one particular asset is better suited for their specific circumstances than another), they will need to register as an investment adviser.
Ultimately, the key point is that understanding the intricacies of what it means to be an investment adviser, including the exceptions within the ‘securities’ component of the definition, is critical for financial coaches navigating the fine line between offering advice to clients and needing to register as an investment adviser. This insight can be invaluable in shaping their services while staying within regulatory boundaries, allowing them to confidently guide those in need of financial advice. And with the clarity provided by the ABCS Test, financial coaches will be better positioned to support the financial wellbeing of their clients, regardless of whether they need to register as investment advisers!
