Regulators urge trustees to get tough on fee consent

The two regulators released a letter they had distributed to super trustees on Wednesday, outlining expectations on the back of the Financial Sector Reform (Hayne Royal Commission Response No. 2) Act 2021 coming into force.

ASIC and APRA said they would be “monitoring trustees’ adherence to the legislative requirements and ASIC instruments’ requirements once they commence”.

“In making payments out of a superannuation fund it is expected that trustees will have processes in place to ensure expenditure is appropriate,” the regulators said.

“In relation to advice fees, the design of specific oversight practices will depend on the advice service model that superannuation funds offer to members.”

APRA and ASIC said while it was not the job of trustees to “make a detailed evaluation of the specific professional advice provided by the financial adviser... trustees who have an understanding of the nature of the business model of the financial adviser will be better placed to implement robust and efficient assurance steps” with regard to the new laws.

“In circumstances where the trustee is not providing financial advice itself, the trustee’s role is to have controls in place in relation to payments made from the fund for advice services,” the regulators said.

APRA and ASIC referred back to their previous correspondence with trustees around fee consents issued after the royal commission’s final report in early 2019, where a review had been conducted of trustees’ oversight processes with regard to advice fee deductions.

“Our review identified a wide range of practices in relation to the extent of reliance on consents and attestations, from some trustees relying solely on financial adviser attestations that advice has been provided, through to others who will not pay financial advisers without clear evidence of member consent,” the regulators said.

While advisers were now legally obligated to provide evidence of consent to trustees, ASIC and APRA said that “over-reliance” on fee consent forms alone “should be avoided”.

“Instead reliance on the consent should be combined with further trustee oversight practices, in particular, proactive reviews of a sample of SOAs and/or related documents to evidence the provision of services, either where misconduct is suspected or as part of a regular review,” the regulators said.

“While member written consent shows that fees have been properly consented to, reviews of SOAs and other documents for a sample of members provide a further assurance that the expected services have been provided in respect of those fees.”